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CAFA — Applicability

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Professor Lonny Hoffman has an interesting article on the Class Action Fairness Act in the current issue of the UC Davis Law Review: "The 'Commencement' Problem: Lessons from a Statute's First Year," 40 U.C. Davis L. Rev. 469 (2006).

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Rule 37 Sanctions — Default Judgment — Death Penalty Sanctions: 4 Factors: (1) Willfulness, Bad Faith Or Fault (e.g., Flouting Court Order), (2) Client, Not Counsel, Responsible, (3) Substantial Prejudice, (4) Lesser Sanctions Insufficient — For Non-Death Penalty Sanctions, Sanction Merely Need Be Just And Related to The Particular Claim at Issue — List of Sanctions in Rule 37 Is Not Exhaustive

Rule 11 Sanctions — Appealability: Mere Criticism in Order Separately Imposing Sanctions Is Unappealable — Due Process Satisfied by Order Giving Clear Notice of Specific Conduct to Be Considered for Sanctions Even If Words “Show Cause” (Rule 11(c)(3)) Missing — Firm Appearing on Signature Page “Present[s]” Brief to Court (Unless Merely “Secondary” Counsel) — When Counsel Appears Unopposed, A Stricter Standard of Candor Applies — Mischaracterization of Submitted Document Sanctionable — Good Quotes: “Rule 11 Is Not A Strict Liability Provision” / “The Argument Is Like The Thirteenth Chime of A Clock: You Not Only Know It’s Wrong, But It Causes You to Wonder About Everything You Heard Before” / “Pursuit of Sanctions by a Court Can Alter Its More Customary Relationship with Counsel and Its Role As Neutral Decisionmaker”

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Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

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Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion

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