Greg Joseph

RICO Conspiracy: (1) Fourth Circuit’s 3-Part Test Requires Conspiring to Operate or Manage the Enterprise (Minority Rule Following Salinas) — (2) Conspirator Need Not Personally Commit Any Predicate Acts — Sufficient That S/he Agreed That One Member of the Conspiracy Commit At Least 2 Predicate Acts — Unnecessary to Identify Specific Racketeering Acts That The Defendant Agreed Would Be Committed — “The Object Of A Rico Conspiracy Is To Engage In Racketeering, Not To Commit Each Predicate Racketeering Act” — Necessary to Prove Only The Defendant Agreed to Pursue The Same Criminal Objective As the Enterprise — (4) Because A Racketeering Conspiracy Is Not Contingent On Specific Predicates, A Jury May Convict On A RICO Conspiracy Charge While Acquitting Defendant On Predicate Acts

United States v. Hunt, 99 F.4th 161 (4th Cir. 2024): This appeal arises from the prosecution of the “36th Street Bang Squad” (the “Bang Squad”), a gang that committed a string of murders, attempted murders, and assaults in 2015 and…

Commercial Litigation and Arbitration

Circuit Split — Derivative Actions — Third Circuit Joins Majority of Circuits in Holding That Dismissal Decisions on Grounds of Futility Are Subject to De Novo Review, Abandoning Abuse of Discretion — Relevant Factors in Deciding Whether De Novo or Deferential Review Is Appropriate

RICO Standing: As Long As Pattern of Racketeering Has Caused Harm to Plaintiff’s Business or Property, Plaintiff Need Not Have Been Injured by Multiple Predicate Acts — Injury from One of the Predicate Acts Suffices to Confer Standing

Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute on Liability of Counsel, Unlike § 1927 and Rule 11, Precludes Award

Supreme Court — Federal Arbitration Act — Inherent Power May Be Controlled or Overridden by Statute or Rule — When the District Court Compels Arbitration, It Must Stay and Cannot Dismiss The Federal Action — “Shall Means Shall”

FRAP 38 Sanctions: An Appeal May Not Be “Wholly Without Merit” — And Therefore May Not Be Sanctionable — Even If Several of Appellant’s Arguments Are Frivolous; Soundness of Central Arguments May Dominate

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

Recent Articles

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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