Friday, September 26, 2014

"Yeah, Well, That's Just, Like, Your Opinion, Man"

I love quirky citations, and Justice Debra Lehrmann of the Texas Supreme Court gave us a good one last month when she cited Walter Sobchak from The Big Lebowski in discussing the evils of prior restraint. Lehrmann, writing an opinion in a defamation case, noted the intolerable nature of prior restraints on speech, a constitutional cornerstone that “has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture.” Her pop culture reference is to Sobchak (played by John Goodman) who, when asked to keep his voice down in a restaurant, responds: “For your information, the Supreme Court has roundly rejected prior restraint.” Kinney v. Barnes, No. 13-0043, 2014 WL 4252272, at *2 n.7 (Tex. Aug. 29, 2014).

Lehrmann isn't the first judge to cite the cult classic, though. That honor belongs to Judge Stewart Dalzell of the United States District Court for the Eastern District of Pennsylvania. In an unpublished 2006 opinion, Judge Dalzell addressed Rule 9's heightened pleading standard for fraud claims. The plaintiffs claimed a large pharmaceutical company defrauded them but failed to allege particulars of when and how the fraud occurred. Judge Dalzell noted the plaintiffs also didn't show any attempts to locate the necessary information to properly allege a fraud claim and found that the “plethora of sources available today” do not permit a litigant claiming fraud “to say, as Brandt does in The Big Lebowski, ‘Well, dude, we just don't know.’” Perry v. Novartis Pharm. Corp., No. Civ.A. 05-5350, 2006 WL 83450, at *2 (W.D. Pa. Jan. 12, 2006).

Happy Friday!


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