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USD Professor Shaun Martin
(University of San Diego Law School)
USD Law Prof. Shaun Martin’s Arguments Win
Unanimous Calif. Supreme Court Ruling
USD News Center       

San Diego (March 3, 2011) – University of San Diego (USD) School of Law Professor
Shaun Martin’s arguments for the plaintiff and appellant in Baycol Case I and II has won
a unanimous opinion from the California Supreme Court. Professor Martin successfully
argued the case on February 8, 2011, and the court’s opinion was published on
February 28, 2011.

Baycol Case I and II involved a petition for review after the Court of Appeal reversed, in
part, the judgment in a civil action and dismissed the appeal. The question before the
court was whether the "death knell doctrine" required plaintiff to immediately appeal the
sustaining of a demurrer as to class claims when the ruling resolved both individual
and class claims, or whether the one final judgment rule applied and required a single
appeal from the subsequent entry of final judgment on all claims?

Martin argued that the one final judgment rule applied, and that when a single order
dismissed both individual and class claims, that dismissal required only a single appeal,
and that the deadline for that appeal ran from the entry of final judgment.

The decision revives an appeal involving a Baycol heart drug state consumer class
action, saying an appeals court misapplied the state's "death knell" doctrine about what
claims can be appealed and how soon they must be appealed.

The court reinstated claims on behalf of California consumers who purchased the
cholesterol drug marketed under the name Baycol. The drug was marketed by Bayer
Corporation from 1997 until 2001, when it withdrew Baycol from the market after data
showing that the drug may be linked to serious muscle debilitating illnesses like
Rhabdomyolysis, possibly leading to death.

The court’s decision clarifies an important point of law in class action cases for the
lower courts and other litigants.

About Shaun P. Martin

Professor Shaun P. Martin served as an editor of the Harvard Law Review and a
general editor of Harvard University’s Civil Rights-Civil Liberties Law Review. He clerked
on the U.S. Court of Appeals for the Ninth Circuit and practiced law with Quinn,
Emanuel, Urquhart & Oliver in Los Angeles before coming to USD in 1995. Martin
teaches civil procedure and professional ethics. He writes in the areas of civil
procedure, criminal law and professional responsibility. Among his publications are
"Intracorporate Conspiracies," Stanford Law Review, "Encumbered Shares," Illinois Law
Review, and "Substitution," Tennessee Law Review. He received the Thorsnes Prize for
Excellence in Teaching in both 2006 and 1999 and was the Herzog Endowed Scholar
in 2007. Professor Martin has helped argue four cases in the United States Supreme
Court during the past several years and has argued numerous cases in both the
California Court of Appeal and in the Ninth Circuit U.S. Court of Appeals.
Does First Amendment
allow citizens to
investigate public
San Diego
Education Report
See decision
Ray Artiano deposition
Nov. 8 2007
August 5, 2011
Stutz Artiano Shinoff &
Shaun Martin wins California Court of Appeal free speech
decision for Maura Larkins (author of this website) against
Stutz Artiano Shinoff & Holtz
University of San Diego (USD) law professor Shaun Martin represented Maura
Larkins pro bono in the Court of Appeal.  He is the author of the blog
Appellate Report.   Stutz attorney Daniel Shinoff is the favorite attorney of San Diego
County Office of Education.
Reply brief
California Appellate Report
Story in Voice of San Diego
Maura Larkins
deposition June 16 2008
Certiorari to the US court of
appeals for the fourth circuit
No. 06–856. Argued
November 26, 2007—
Decided February 20, 2008
450 F. 3d 570, vacated and

[Professor Shaun Martin
assisted in the successful
briefing and argument of
LaRue v. DeWolff, Boburg
& Associates, 128 S.Ct.
1020 (2008), an ERISA
benefits case.]

Petitioner, a participant in a
defined contribution
pension plan, alleged that
the plan administrator’s
failure to follow petitioner’s
investment directions
“depleted” his interest in the
plan by approximately
$150,000 and amounted to
a breach of fiduciary duty
under the Employee
Retirement Income Security
Act of 1974 (ERISA). The
District Court granted
respondents judgment on
the pleadings, and the
Fourth Circuit affirmed.
Relying on Massachusetts
Mutual Life Ins. Co. v.
Russell, 473 U. S. 134 , the
Circuit held that ERISA §502
(a)(2) provides remedies
only for entire plans, not for

Held: Although §502(a)(2)
does not provide a remedy
for individual injuries distinct
from plan injuries, it does
authorize recovery for
fiduciary breaches that
impair the value of plan
assets in a participant’s
individual account. Section
502(a)(2) provides for suits
to enforce the liability-
creating provisions of §409,
concerning breaches of
fiduciary duties that harm
plans. The principal
statutory duties imposed by
§409 relate to the proper
administration, and
investment of plan assets,
with an eye toward ensuring
that the benefits authorized
by the plan are ultimately
paid to plan participants.
The misconduct that
petitioner alleges falls
squarely within that
category, unlike the
misconduct in Russell.
There, the plaintiff received
all of the benefits to which
she was contractually
entitled, but sought
consequential damages
arising from a delay in the
processing of her claim.
Russell’s emphasis on
protecting the “entire plan”
reflects the fact that the
disability plan in Russell, as
well as the typical pension
plan at that time, promised
participants a fixed benefit.
Misconduct by such a plan’s
administrators will not affect
an individual’s entitlement
to a defined benefit unless
it creates or enhances the
risk of default by the entire
plan. For defined
contribution plans, however,
fiduciary misconduct need
not threaten the entire plan’
s solvency to reduce
benefits below the amount
that participants would
otherwise receive. Whether
a fiduciary breach
diminishes plan assets
payable to all participants
or only to particular
individuals, it creates the
kind of harms that
concerned §409’s
draftsmen. Thus, Russell’s
“entire plan” references,
which accurately reflect
§409’s operation in the
defined benefit context, are
beside the point in the
defined contribution
context. Pp. 4–8.

450 F. 3d 570, vacated and

Stevens, J., delivered the
opinion of the Court, in
which Souter, Ginsburg,
Breyer, and Alito, JJ.,
joined. Roberts, C. J., filed
an opinion concurring in
part and concurring in the
judgment, in which
Kennedy, J., joined.
Thomas, J., filed an opinion
concurring in the judgment,
in which Scalia, J., joined.