Dispositive Motions

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DISPOSITIVE MOTIONSPremier date: November 16, 2016

NEWBIE LITIGATION SCHOOL, PART 1

Premier Date: November 16, 2016

NEWBIE LITIGATION SCHOOL, PART 1

DISPOSITIVE MOTIONS

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meet the facultyPANELISTS

Theresa Davis Reed Smith, ChicagoJim Morsch Butler Rubin Saltarelli & Boyd, ChicagoDave Rownd Thompson Coburn, Chicago

MODERATOR

Robert Michaels,

Robinson Curley & Clayton PC, Chicago

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Practical and entertaining education for business owners and executives, accredited

investors, and their legal and financial advisors. For more information, visit

www.financialpoise.comDISCLAIMER: THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD

NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

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about this webinar

Dispositive motions can resolve your lawsuit long before trial. This panel will explain the purposes and procedures for motions to dismiss, motions for judgment on the pleadings and summary judgment motions.

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about this series

This series is aimed at attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to introduce different components of litigation in the order they generally occur, beginning with the basic rules of civil procedure and continuing through discovery, dispositive motions, and working with experts. The series is best viewed as a whole, building from one session to the next, and then segueing into a second series in early 2017 covering the next phase of litigation (rules of evidence, trial, appeal, and post-judgment enforcement/collection).

episodes in this series

EPISODE #1 Federal Rules of Civil Procedure Refresher 9/28/16

EPISODE #2 Discovery Practice 10/19/16

EPISODE #3 Dispositive Motions 11/16/16

EPISODE #4 Working With Experts 12/7/16

Dates above are premier dates; all webinars also available on demand

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• Listed in FRCP 12(b)

• No subject matter jurisdiction

• No personal jurisdiction

• Improper venue

Motion to Dismiss - Grounds

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• Listed in FRCP 12(b)

• Improper process/bad service

• Failure to state a valid claim

• Failure to join necessary party

Motion to Dismiss – Grounds Cont’d

• Dismissal for lack of jurisdiction, venue and process doesn’t doom claim; typically just a matter of where litigation will proceed

• Extensive venue/jurisdictional motion practice common

• Can involve discovery re: jurisdictional facts (residence, forum contacts, etc.)

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“Non-Merits” Motions to Dismiss

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• Basic standard: does complaint allege a “plausible” claim for relief?

• Complaint must give defendant “fair notice” of claim and basis

• Can’t rely on labels, conclusions or recitation of elements

• But Rule 8(a) still applies: short, plain statement, except for fraud and mistake, which must be alleged “with particularity” (Rule 9(b))

Dismissal on Merits – Rule 12(b) (6) Standard Pt. 1

• “Plausible” roughly = “reasonable”; more than merely “possible” but not necessarily “probable” or even “likely”

• Motion must accept all “well-pleaded” factual allegations as true and draw all reasonable inferences in plaintiff’s favor

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Dismissal on Merits – Rule 12(b) (6) Standard Pt. 2

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• Strong motion targets:

• skeletal factual allegations (especially in cases with multiple defendants)

• failure to plead fraud with particularity under Rule 9(b)

• failure to satisfy element(s) of claim

Rule12(b)(6) Motion Strengths/Weaknesses

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• Common motion weaknesses:

• Failure to accept allegations as true

• Drawing inferences against plaintiff

• Treating “plausibility” as (more than 50%) “probability”

• Unsound legal analysis

Rule12(b)(6) Motion Strengths/Weaknesses

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• Typically not considered unless attached to complaint

• Modest trend toward considering materials heavily cited in complaint

• Defendant would authenticate and attach to motion

• Plaintiff can seek to convert to summary judgment motion and seek discovery

Rule12(b)(6) Motion -Materials Outside Complaint

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• Motion Granted

• Re-plead by adding more facts (if dismissal is without prejudice)

• Take dismissal with prejudice and appeal

• Motion Denied

• Interlocutory order; no immediate appeal

• Because case won’t end without either summary judgment or trial, motion to dismiss ruling typically not reviewed on appeal

Rule 12(b)(6) Motion - Outcomes

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• Least common dispositive motion; authorized by FRCP 12(c)

• Filed after close of pleadings (complaint, answer, affirmative defenses, counterclaim, answer/defenses to counterclaim)

• Standard essentially = Rule 12(b)(6) standard

• Available to plaintiff or defendant on claims, defenses or counterclaims

Judgment on the Pleadings

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• FRCP 56: Summary judgment proper if no genuine dispute of material fact and movant entitled to judgment as a matter of law

• Can be brought on any or all claims or defenses

(“partial summary judgment”)

• Available to plaintiff and defendant

• Typically brought after close of discovery

Summary Judgment - Overview

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• Often complex; check local rules and judge’s standing order

• Typically at least two documents: brief/memo of law and statement of undisputed facts

• Brief draws all facts from/cites to fact statement, not pleadings

Summary Judgment – Procedure Pt. 1

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• Fact statement must enumerate each material undisputed fact and cite to supporting evidence from record (e.g., deposition transcripts, interrogatory answers, documents/ESI)

• Evidence attached and presented in user-friendly format (see local rules)

• Opponent must respond fact-by-fact; if fact disputed, opponent must cite/attach supporting evidence

• Opponent may submit statement of disputed material facts in same format; movant must respond

Summary Judgment – Procedure Pt. 2

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• Motion Granted

• Take dismissal with prejudice and appeal

• Motion Denied

• Interlocutory order; no immediate appeal

• Because case won’t end without trial, denial of summary judgment motion typically not reviewed on appeal

Summary Judgment - Outcomes

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• IRA(C) – The rule that shall never be broken

• Issue (often in heading)• Rule• Application/Analysis• Conclusion (can sometimes be skipped)

• Organize brief according to claim elements; tie all argument to relevant claim element

• Use legal authority extensively but carefully; don’t lose trust of court

Dispositive Motion Briefing Tips Pt. 1

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• Earn trust of court and earn your conclusions

• Find resonant theme

• Get on right side of policy/purpose of relevant rules

• Avoid/limit rhetoric, characterization, sarcasm, etc.

Dispositive Motion Briefing Tips Pt. 2

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• Follow writing best practices • avoid active voice, • limit nominalization (turning verbs into nouns)• Use concrete sentence subjects (e.g., “courts”), not

long, abstract ones (e.g., “the principal that . . .”)

• Use strong, specific verbs; engine of every good sentence

Dispositive Motion Briefing Tips Pt. 3

More About The Faculty D

ROBERT [email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge.

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More About The Faculty:

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THERESA [email protected]

Theresa Davis is a partner in Reed Smith’s Complex Litigation Group in Chicago.

Theresa’s practice is focused on high-profile litigation, crisis management, and state and federal regulatory investigations.  She has extensive experience in litigation matters pending in federal and state courts throughout the country.

She has substantial experience defending companies and their directors, officers and key employees in a wide range of matters arising from allegations of minority shareholder oppression, breaches of fiduciary duties, accounting irregularities, FCPA violations, AKS violations, insider trading, inadequate or misleading public disclosures, purchase price disputes, and options backdating. Theresa has represented corporate clients in numerous internal investigations, compliance reviews, government investigations, and enforcement actions and frequently counsels clients on a wide range of strategic litigation and corporate governance matters.

Theresa attended law school at Chicago-Kent College of Law, Illinois Institute of Technology, where she earned a J.D., with honors.

More About The Faculty

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JIM [email protected]

Jim Morsch is a Partner with Butler Rubin Saltarelli & Boyd LLP.

For more than 20 years, Jim has been a commercial litigator focusing on complex and high-stakes litigation. Among other clients, he represents insurance companies in disputes with other insurers and policyholders. During his career, Jim has developed broad experience in commercial litigation including areas such as class actions, insurance bad faith, trade secrets and restrictive covenants, unfair competition and distribution disputes, and injunctions. He has a national reputation for his counsel to opt-out plaintiffs in significant antitrust cases.

Jim regularly represents companies in class actions and helps clients identify and take advantage of revenue-enhancing, litigation opportunities. He represents a wide range of clients from one of the country’s largest insurers to local manufacturing concerns and small to medium-sized businesses. Jim is a trial attorney admitted to practice in Illinois, the U.S. District Court for the Northern District of Illinois, the 7th Circuit Court of Appeals, the Eastern District of Wisconsin, the Western District of Michigan, and several other federal district and appellate courts. He litigates in state and federal courts outside the State of Illinois and serves as outside counsel to several Fortune 500 companies, trade groups, and small businesses. Jim frequently resolves cases through mediation and/or arbitration. He has been repeatedly cited as a leader in antitrust litigation by Illinois Super Lawyers and Jim was named as a leader in antitrust law in The Best Lawyers in America. And, as part of the Law Bulletin Publishing Group’s 2015 survey of the top lawyers in the state, Jim was designated a "Leading Lawyer" in Illinois in Antitrust Law, Commercial Litigation, Insurance, Insurance Coverage and Reinsurance Law, and Trade Secrets/Unfair Competition Law. Benchmark Plaintiff named him a Local Litigation Star (2013-2015) – Illinois in the areas of Antitrust, General Commercial and Securities. In addition, Jim won the Client Choice – USA & Canada 2014 award in Insurance & Reinsurance – Illinois.Jim earned his J.D. from the Northwestern University School of Law in 1992, where he was the Book Review Editor of the Journal of Criminal Law and Criminology. He received a B.A. (Government and Modern Languages), cum laude, from the University of Notre Dame in 1987.

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More About The Faculty:

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DAVE [email protected]

Dave Rownd is a Partner at Thompson Coburn, LLP in Chicago.

Dave is a practical and resourceful business litigator with a long track record of successful results. Dave handles disputes involving contractual, fiduciary and other statutory and common law duties in a number of industries, including real estate, telecommunications, marketing, automotive and insurance. He has extensive experience litigating property rights; representing clients that manage portfolios, such as cell tower and billboard leases and easements and various financial instruments, where the assignees of the original contracting parties are in dispute over their acquired contractual rights and liabilities. He has significant experience representing parties in disputes with former colleagues or fellow business owners where the parties' characterizations of situations can vary greatly. Dave has tried bench and jury trials in state and federal courts, conducted hearings before administrative agencies and represented clients in arbitrations and mediations before domestic and international alternative dispute resolution tribunals. Dave also serves as a counselor and concierge to a variety of clients, coordinating the delivery of client services in a number of different areas, including real estate transactions, business deals and estate planning and administration.

Dave received his undergraduate degree from Northwestern University and his law degree from Washington University in St. Louis. He is admitted to practice before the Illinois state courts, the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit and federal district courts in Illinois, Indiana, Michigan, Texas and Wisconsin and he has been admitted pro hac vice for various cases in numerous courts across the country. Dave is a Fellow of Litigation Counsel of America and has been selected by his peers as an Illinois Super Lawyer every year since 2009. When not serving his clients, Dave is active in the community serving on the Board of Directors of Chicago's Old Town School of Folk Music and as the Treasurer of Chicago's North River Commission.

Visit www.eisneramper.comEisnerAmper. Let's Get Down to Business®

EisnerAmper LLP is a leading full-service advisory and accounting firm, and is among the largest in the United States. We provide audit, accounting, and tax services, as well as corporate finance, internal audit and risk management, litigation services, consulting, private business services, employee

benefit plan audits, forensic accounting, and other professional advisory services to a broad range of clients across many industries. We work with high net worth individuals, family offices, closely held businesses, start-ups, middle market and Fortune 500 companies. EisnerAmper is PCAOB-registered and provides services to more than 200 public companies and to thousands of entities spanning the hedge, private equity, brokerage and insurance

space in the financial services marketplace. As companies grow we help them reach their goals every step of the way. With offices in New York (NY), New Jersey (NJ), Pennsylvania (PA), California (CA), and the Cayman Islands, and as an independent member of Allinial

Global, EisnerAmper serves clients worldwide.

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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.