Greg Joseph

Arbitration: Appealability — Order Compelling Arbitration Not Appealable Unless It Disposes of Entire Action — Merely Directing Arbitration Or Staying Action Pending Arbitration Requires §1292(b) Certification

Gold Coast Prop. Mgmt. v. Certain Underwriters at Lloyds, 2019 U.S. App. LEXIS 27098 (11th Cir. Sept. 6, 2019): THE COURT: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. The district court's June 14, 2019 order granting the …

Attorney-Client Privilege: Crime-Fraud Applies to Commc’n Precipitating Fraud Even If Different Tack Used — RICO: Unadjudicated Civil Action = Property — No Mens Rea for Unlawful Debt But Knowledge Statutory Definition Satisfied

United States v. Neff, 2019 WL 4235218 (3d Cir. Sept. 6, 2019) (unpublished): Charles Hallinan and Wheeler Neff were convicted of conspiring to collect unlawful debts in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), federal …

Statutory Interpretation —“Even Precise & Voluminous Legislative History [LH] Can Be Off the Mark” (RICO) — Don’t Use LH If Text Clear — Noscitur a Sociis Inapt If “Or” Used — Rule of Last Antecedent (Good Quotes)

Pellegrino v. United States Transp. Sec. Admin., 2019 U.S. App. LEXIS 26392 (3d Cir. Aug. 30, 2019): The Federal Government is typically immune from suit. The Federal Tort Claims Act waives the Government's immunity for certain torts committed by its …

Marital Communications Privilege: Factors — Invoker Must Establish Privilege Applies, But Opponent Must Defeat Presumption of Confidentiality — Applicability of a Priv. Is Fact Question, Scope Is Legal Question

United States v. Pugh, 2019 U.S. App. LEXIS 26204 (2d Cir. Aug. 29, 2019): Defendant-appellant Tairod Nathan Webster Pugh appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Garaufis, …

Sanctions: Omission Must Be Material before Dismissal May Be Apt — Materiality Defined — Importance of State of Mind (Contract, Tort Examples)

Greyer v. Ill. Dep’t of Corrections, 2019 WL 3798212 (7th Cir. Aug. 13, 2019): *1 One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often…

Expert (701) vs. Lay (702) Opinion: Estimating Age = R. 701 Testimony — Under R. 704(b), Expert Can’t Opine on Def’s Intent But Can Give Testimony Supporting an Obvious Inference As to It

United States v. Stahlman, 2019 U.S. App. LEXIS 24571 (11th Cir. Aug. 19, 2019): After a jury trial, John David Stahlman appeals his conviction and 292-month sentence for attempting to entice a minor to engage in sexual activity. On appeal,…

Rule 37(b)(2)(A) — Deeming Facts Admitted, Striking Defenses for Perjury, Filing Fraudulent Docs — Deeming Billions in Bitcoin Jointly Owned [Does a Magistrate Judge Have Power to Order This Sanction?] — MJ Can’t Find Indirect Criminal Contempt

Kleiman v. Wright, 2019 U.S. Dist. LEXIS 147712 (S.D. Fla. Aug. 27, 2019): This matter is before the Court on the Plaintiffs' Motion to Compel, DE 210, and the Court's Order dated June 14, 2019. DE 217. The Court has…

Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

In re Univ. of Mich., 2019 U.S. App. LEXIS 25304 (6th Cir. Aug. 23, 2019): This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power…

Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

Akins v. So. Glazer’s Wine & Spirits of Ark. LLC, 2019 WL 4071876 (8th Cir. Aug. 29, 2019) (unpublished): PER CURIAM. *1 Henry Akins appeals after the district court dismissed with prejudice his employment discrimination complaint as a sanction for…

RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district …

Commercial Litigation and Arbitration

Arbitration: Appealability — Order Compelling Arbitration Not Appealable Unless It Disposes of Entire Action — Merely Directing Arbitration Or Staying Action Pending Arbitration Requires §1292(b) Certification

Attorney-Client Privilege: Crime-Fraud Applies to Commc’n Precipitating Fraud Even If Different Tack Used — RICO: Unadjudicated Civil Action = Property — No Mens Rea for Unlawful Debt But Knowledge Statutory Definition Satisfied

Statutory Interpretation —“Even Precise & Voluminous Legislative History [LH] Can Be Off the Mark” (RICO) — Don’t Use LH If Text Clear — Noscitur a Sociis Inapt If “Or” Used — Rule of Last Antecedent (Good Quotes)

Marital Communications Privilege: Factors — Invoker Must Establish Privilege Applies, But Opponent Must Defeat Presumption of Confidentiality — Applicability of a Priv. Is Fact Question, Scope Is Legal Question

Sanctions: Omission Must Be Material before Dismissal May Be Apt — Materiality Defined — Importance of State of Mind (Contract, Tort Examples)

Expert (701) vs. Lay (702) Opinion: Estimating Age = R. 701 Testimony — Under R. 704(b), Expert Can’t Opine on Def’s Intent But Can Give Testimony Supporting an Obvious Inference As to It

Rule 37(b)(2)(A) — Deeming Facts Admitted, Striking Defenses for Perjury, Filing Fraudulent Docs — Deeming Billions in Bitcoin Jointly Owned [Does a Magistrate Judge Have Power to Order This Sanction?] — MJ Can’t Find Indirect Criminal Contempt

Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Recent Articles

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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