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Another Pleading Idea

By James M. Beck and Mark Herrmann

Twomby/Iqbal has (have?) a lot of us on the defense side looking more closely at pleadings.  Here's another idea to kick around - is it proper for an attorney simply to dump a slew of allegations from a document prepared by someone else - say, a complaint, consent decree, or other document filed by the government - into a civil complaint with no further investigation by the attorney operating the word processor?  Rule 11, after all, requires attorneys to conduct independent investigations of the pleadings they file.

But Rule 11 was defanged a long time ago, you say.  We thought so too.

But maybe there's something left.

360 reported today on a case indicating that Bayer's had some success getting consumer fraud actions in California pitched where attorneys did this.  We took a closer look, and there's actually more than one.  See Johns v. Bayer Corp., No. 09CV1935 DMS (JMA), slip op. (S.D. Cal. Feb. 9, 2010); Fraker v. Bayer Corp., CV F 08 ? 1564 AWI GSA, slip op. (E.D. Cal. Oct. 6, 2009).  Johns and Fraker cite other cases that also support bringing Rule 11 motions against attorneys who simply parrot allegations they found elsewhere, and don't investigate them independently.

It's something to consider in an appropriate case when confronted with a complaint you know has been plagiarized from somewhere else - usually with typos included.

And kudos to Bayer for trying something that's so old, that it's new.

Full post as published by Drug and Device Law on February 12, 2010 (boomark / email).