There is absolutely no way in any sane universe that the Plaintiffs “failed to allege” sufficient facts to avoid a 12(b)(6) dismissal in this case, headlines and bylines and introductory paragraphs notwithstanding.

The linked article is behind a paywall, but neither you nor I have to read the article, nor do we have to spend our PACER capital looking up the actual decision.

The system has learned nothing from a year or more of social unrest. Here’s what happened in this case, and it can be gleaned from what little remains. Volkswagen and a few other German automakers were sued in a class action. They spent an enormous amount of money to hire Sullivan & Cromwell, perhaps the most “prestigious” law firm in New York City. Sullivan & Cromwell made an utterly bullshit, even embarrassing “argument” that the complaint should be dismissed on 12(b)(6) grounds. The judge granted the motion.

Arguments are cheap, but not when Sullivan & Cromwell makes them. Then they are very expensive and prevail, no matter how stupid they are.

The decision will be upheld on appeal to the CA2, if there even is an appeal. Because intermediate federal appeals courts are now “certiorari” courts, which ostensibly means that they only devote their “scarce resources” to important questions of law, but in practice what it really means is that District Court decisions throwing the rabble out of court will always be upheld, because we don’t spend our scarce resources on the rabble.

In other words, this is a purely class-based decision in favor of established, entrenched interests. It’s snobbery pretending to be a legal opinion. It’s the kind of increasingly common occurrence that in the long term is a threat to the courts as institutions because, as we have repeatedly noted, established and entrenched interests prevail without courts, so courts may as well be done away with. But since that is, by definition, the collapse of the government….

We’ve described all this before, in a similar context. Recently. Indeed we would not be surprised to learn that this Volkswagen decision is derived from the case we were reviewing there.

This cannot go on. The institutional momentum, mindless though it may be, is doubling down after a crisis that should have inspired some change. If all the courts ever do is rationalize the powerful prevailing over the weak, the lesson becomes power is everything and truth and justice are nothing. The weak learn the lesson and turn to rioting and other forms of violence. It’s the only logical approach, and we follow logic, ultimately, whether the courts do or not.

Oh yes, almost forgot. Here is the bio of the judge. She’s Hispanic, but she’s made her “career” by being an establishment shill. Former prosecutor. Political operative. Ivy Leaguer.

We’re beginning to think that not just prosecutors should be barred from judicial office, but Ivy Leaguers, too. The extent to which that is unthinkable is directly related to how hopeless the situation with our courts is.

Ugh. We are doomed.