When is Enough Enough?

Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

I recently posted about an 81-page complaint that U.S. District Court Judge Patrick J. Schiltz (D. Minn.) threw out of court, finding it to have been a violation of Rule 8, the federal rule requiring that complaints be “short” and “plain.”

What about a 48-page complaint in a class action? Too long? Too short?

Plaintiffs bring this class action lawsuit individually and on behalf of similarly situated members of the Classes (defined below) against Defendants for their refusal to pay for Harvoni—a medically necessary treatment that can effectively cure the chronic Hepatitis C (“CHC”) of Plaintiffs and members of the Classes. Defendants wrongfully denied coverage for Harvoni based on a desire to decrease costs and increase profits, in breach of the health insurance contracts Defendants entered into with Plaintiffs and members of the Classes and the implied covenant of good faith and fair dealing and, also, in violation of the Consumer Fraud Act, Minn. Stat. § 325F.69, et seq. (the “CFA”) and the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).

Is the 48-page complaint too long a complaint (or too short?) to withstand a motion to dismiss? Plaintiffs’ lawyers call this being “whip-sawed,” faulted because one’s allegations are too lengthy, on the one hand, or too short and insufficiently detailed on the other…

The defendant, United Healthcare, in the Harvoni class action litigation brought a motion to dismiss the amended complaint as it did the initial complaint but it has not yet filed a brief explaining the bases of its motion.

Instead, this past week, UHC brought a motion to stay the case in favor of a settlement reached in other similar litigation brought by other plaintiffs, represented by other lawyers, pending in another forum.

That, in turn, opens a whole different front in the battle and questions of how large-scale civil litigation is resolved in our courts, where a defendant can effectively shop around for preferred forums AND for preferred adversaries….