I previously reviewed and enthusiastically recommended the first two editions of an invaluable and comprehensive treatise for commercial litigators titled Business and Commercial Litigation in Federal Courts, published in 1998 and 2005. The third edition has recently been published, and it is readily apparent that the authors and editor-in-chief Robert Haig have once again provided an indispensable tool for all litigators who handle matters in the federal courts, regardless of their seniority or particular area of practice. It is a go-to resource that contains an up-to-date compendium of both substantive and procedural law, as well as practical insights, tips and strategies that neither electronic research nor other federal court treatises can provide.
The expanded treatise is an 11-volume set that is composed of 130 chapters, including 34 new chapters not included in the second edition. The chapters are authored by 229 experienced practitioners and 22 distinguished federal judges from around the country. Because each chapter is written by a leading practitioner or judge, it contains personal nuggets of wisdom and sage advice that are just as valuable, if not more so, than the thorough legal analyses and extensive citations to precedent found in each chapter. The different perspectives, experiences and voices of the many authors make this treatise unique and very enjoyable to read. A number of prominent Pennsylvania judges and litigators have contributed to the treatise: U.S. District Judge Michael M. Baylson of the Eastern District of Pennsylvania, Kelly Eckel and Sandra Jeskie of Duane Morris (Chapter 78: Contracts); Judge Paul Diamond and Mathieu Shapiro of Obermayer Rebmann Maxwell & Hippel (Chapter 72: Director and Officer Liability); Chief Judge Petrese Tucker and Abbe Fletman of Flaster Greenberg (Chapter 120: Government Entity Litigation); H. Robert Fiebach and Jennifer McHugh of Cozen O'Connor (Chapter 16: Issue and Claim Preclusion); James D. Pagliaro of Morgan, Lewis & Bockius (Chapter 19: Class Actions); and Laura Ellsworth and Charles Moellenberg Jr. of Jones Day (Chapter 14: Multidistrict Litigation).
The first 66 chapters comprehensively address federal procedural and discovery issues, which will enable a litigator to handle all types of commercial matters more effectively. Great emphasis is placed on strategic considerations a litigator must take into account in all phases of a commercial case, from the initial decision to file a complaint through discovery, motion practice, trial, appeal and even enforcement of judgments. For example, the treatise's discussion of the pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal not only sets forth how those requirements have actually been applied on a circuit-by-circuit basis, it also addresses the various tactical and strategic considerations that should be taken into account in drafting a complaint or potential motion to dismiss. The nuances of dealing with complicated searches of electronically stored information (ESI) are the subject of an outstanding chapter authored by U.S. District Judge Shira Scheindlin of the Southern District of New York, who is recognized for her expertise in ESI discovery (Chapter 25). This chapter includes a detailed analysis of cost-sharing and cost-shifting responsibilities, as well as helpful suggestions with respect to third-party vendors.
The next 64 chapters each deal with a separate area of substantive law most commonly encountered in commercial cases, ranging from securities, antitrust, ERISA and intellectual property to employment law. And the treatise goes on to cover the waterfront of white-collar criminal practice, including hot-button issues such as money laundering, the Foreign Corrupt Practices Act, False Claims Act and export-control laws and regulations. There is an excellent chapter concerning the interplay between commercial litigation and criminal proceedings (Chapter 113), co-authored by renowned criminal lawyer Ted Wells, which contains an in-depth analysis of the intricacies of defending litigation that entails both civil and criminal exposure. Tactical considerations relating to invocations of privilege; the benefits and risks of cooperation with the governmental investigation; and overlapping discovery requests in parallel civil and criminal proceedings are just a few of the many topics that are presented.
Other areas that have grown in importance to commercial litigators, such as consumer protection, executive compensation, international arbitrations, food and drug regulation, litigation with the U.S. Securities and Exchange Commission, and sports and entertainment law, are also featured for the first time in this edition. The new chapter concerning the coordination of litigation in state and federal courts authored by Judge Jane Richards Roth of the U.S. Court of Appeals for the Third Circuit is a must-read for any class action practitioner, regardless of whether you represent plaintiffs or defendants (Chapter 15). The treatise also places front and center other important topics, such as pro bono litigation, ethical considerations and civility.
What sets this user-friendly treatise apart from treatises such as Moore's or Wright & Miller are practical strategies and client counseling techniques, and hundreds of pages of in-depth checklists and essential litigation forms, including model complaints, motions, jury instructions and verdict forms. Each chapter is well-organized and meticulously researched, with abundant citations to cases, law review articles, West Key numbers, American Law Reports and other treatises. The treatise also includes a useful appendix that makes it very easy to locate the particular subject, case or form that you are looking for. Pocket parts to the volumes and the appendix will be provided annually to ensure that practitioners are kept up-to-date on procedural and substantive changes in the law. Electronic copies of the forms can be found on a set of CDs, which will allow practitioners to modify them or use them "as is." Significantly, the complete treatise is available online through Westlaw, allowing full access even when you are out of the office.
There is simply no other resource that can match Business and Commercial Litigation in Federal Courts. The wealth of information provided in the treatise is easily accessible and useful for commercial litigators in law firms of any size or in-house corporate legal departments. The depth and breadth of this treatise, along with its one-of-a-kind combination of practical checklists and forms, useful advice and thorough analysis of a wide range of federal court procedural issues and myriad areas of substantive law, ensure that this new edition, like its predecessors, will find a widespread audience. •
Roberta D. Liebenberg is a partner with Fine, Kaplan and Black in Philadelphia. She concentrates her practice in complex commercial litigation, particularly class actions and antitrust litigation, as well as white-collar criminal defense.