Defeat Snatched from Jaws of Victory

So, “for the reasons set forth below, the Court grants Defendants' request to reconsider its previous opinion.” Hooray! Pop that cork, and let’s get me some bubbly! What… wait… what’s that? What do you mean he’s not finished? Uh, sorry, but you forgot to read the other part, the one that says “but denies the relief requested as the newly considered case law does not alter the Court's prior decision.”

Bet they kind of feel like this kid, don’t you think? Anyway, it’s our old friend Dura in play here, and this time it has Judge Dennis M. Cavanaugh (D. N.J.) (Clinton Class of ‘00) observing in the Sealed Air action that he “would have to address many issues of fact to make a determination of whether Plaintiff has established loss causation,” but “the Court is prohibited from making these determinations at this point in the litigation.”

You can read Senn v. Hickey, issued July 10, 2006, at 2006 U.S. Dist. LEXIS 46332.

Nugget: “Again, this decision does not mean Defendants may not later prove Plaintiff failed to establish loss causation. The Court is only stating that it would be improper to make a ruling on this issue during a motion to dismiss.”