Complex Lit Blog

Discovery Sanctions — Attorney’s Fees under Rule 37(b)(5) — Although Phrased in Seemingly Mandatory Terms, Court’s Discretion Is Broad — Excessive Fee Request May Be Denied as “Unjust” — Standard under 12(c) = Summary Judgment

Jones v. Dufek, 2016 U.S. App. LEXIS 13549 (D.C. Cir. July 26, 2016): Tawanda Jones owed $1,050.29 to Bank of America. Bank of America sold the debt to CACH, LLC. That company hired the Law Office of David Sean Dufek in San Diego, California, to help it collect on the debt. In 2013, Dufek sent Jones the following letter:

Supreme Court Precedent & Dicta: “Federal Courts Are Not Free to Limit Supreme Court Opinions to The[ir] Facts” & Are Bound by the Supreme Court’s Considered Dicta Almost as Firmly as by Its Outright Holdings (Good Quotes)

In re: Pre -Filled Propane Tank Antitrust Litigation, 2016 U.S. App. LEXIS 15748 (8th Cir. Aug. 25, 2016) (Benton, J., dissenting): [F]ederal courts "are not free to limit Supreme Court opinions to the facts of each case." McDonough v. Anoka Cnty., 799 F.3d 931, 942 (8th Cir. 2015) ...

In re: Pre -Filled Propane Tank Antitrust Litigation, 2016 U.S. App. LEXIS 15748 (8th Cir. Aug. 25, 2016) (Benton, J., dissenting): [F]ederal courts "are not free to limit Supreme Court opinions to the facts of each case." McDonough v.…

RICO: Bank + Outside Contractor, 2 Law Firms, Commc’ns & Processing Firms= AIF Enterprise—Pleading: “9(b) Does Not Require Omniscience” & 12(b)(6) Doesn’t Require “a Prima Facie Case for Each Element” (Good Quotes)

George v. Urban Settlement Servs., 2016 U.S. App. LEXIS 14934 (10th Cir. Aug. 15, 2016): Richard George, Steven Leavitt, Sandra Leavitt, and Darrell Dalton appeal the district court's dismissal of their putative class action against Urban Settlement Services, d/b/a Urban Lending Solutions (Urban) and Bank of Ameri ...

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately Nelson v Nelson, 2016 U.S. App. LEXIS 15164 (8th Cir. Aug. 18, 2016): Steven Nelson claim ...

Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

United States v. White, 2016 U.S. App. LEXIS 15675 (11th Cir. Aug. 25, 2016): After a jury trial, Lancy White, Jr., appeals his convictions for using the Internet to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). A § 2422(b) conviction requires that the sexual activity the defendant en ...

Class Actions — 7th Circuit Adopts Strict Scrutiny of Disclosure-Only Settlements — Good Posner Quotes (To Be told “The Board Considered a ‘Number of Factors’ Was to Be Told Nothing”) — Disqualification of Plaintiff’s Counsel Suggested

In re Walgreen Co. Stockholder Litig. (Hays v. Walgreen Co.), 2016 U.S. App. LEXIS 14684 (7th Cir. Aug. 10, 2016) (2-1 decision; dissent forthcoming):In merger litigation the terms "strike suit" and "deal litigation" refer disapprovingly to cases in which [*2] a large public company announces an agreement that requires share ...

In re Walgreen Co. Stockholder Litig. (Hays v. Walgreen Co.), 2016 U.S. App. LEXIS 14684 (7th Cir. Aug. 10, 2016) (2-1 decision; dissent forthcoming):In merger litigation the terms "strike suit" and "deal litigation" refer disapprovingly to cases in which …

Attorney-Client Privilege — Common Interest Doctrine — A “Shared Desire to See the Same Outcome … Is Insufficient” (Good Quote)

Brown v. Bank of America, 2016 U.S. App. LEXIS 15190 (9th Cir. Aug. 18, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Larry Brown appeals the district court's dismissal of his case for lack of standing, and the ...

Facebook Authentication: 3d Cir. Adopts Circumstantial Approach — Chats Not Self-Authenticated by 902(11) Certificate (Circuit Split) Except to Prove Chats Took Place — Hearsay: Party’s Chat = Admission & Other Side’s Words OK for Context

United States v. Browne, 2016 U.S. App. LEXIS 15668 (3d Cir. Aug. 25, 2016): The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence--a prerequisite to admissibility at trial. Appellant Tony J ...

Prejudgment Interest Can’t Be Denied on the Ground That the Verdict Is Generous Enough — That Gives Windfall to Defendant: An Interest-Free Loan — Difficulty in Calculating Is Not A Basis to Deny

Leonard v. Stemtech Int’l Inc., 2016 U.S. App. LEXIS 15565 (3d Cir. Aug. 24, 2016): Andrew Leonard, a stem cell photographer, and Stemtech International, Inc., a company that sells nutritional supplements through independent distributors, cross appeal various rulings in the copyright infringement lawsuit Leonard brought against Stem ...

Voicemail Authentication: Self-Identification + Request to Return Call to Home Number of Self-Identifier + Contents of Message = Sufficient Circumstantial Authentication

Goodrich v. Director, 2016 U.S. Dist. LEXIS 111633 (E.D. Tex. July 21, 2016): Petitioner Joseph Glenn Goodrich, an inmate confined within the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The abov ...

Commercial Litigation and Arbitration

Discovery Sanctions — Attorney’s Fees under Rule 37(b)(5) — Although Phrased in Seemingly Mandatory Terms, Court’s Discretion Is Broad — Excessive Fee Request May Be Denied as “Unjust” — Standard under 12(c) = Summary Judgment

Supreme Court Precedent & Dicta: “Federal Courts Are Not Free to Limit Supreme Court Opinions to The[ir] Facts” & Are Bound by the Supreme Court’s Considered Dicta Almost as Firmly as by Its Outright Holdings (Good Quotes)

RICO: Bank + Outside Contractor, 2 Law Firms, Commc’ns & Processing Firms= AIF Enterprise—Pleading: “9(b) Does Not Require Omniscience” & 12(b)(6) Doesn’t Require “a Prima Facie Case for Each Element” (Good Quotes)

RICO — Operating Partner, Sons, Outside Accountants & “Ill-Defined Cluster of Other Business Entities” ≠ Enterprise — No Discrete Existence Shown by Subsets of the Group Pursuing Their Own Ends Separately

Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

Class Actions — 7th Circuit Adopts Strict Scrutiny of Disclosure-Only Settlements — Good Posner Quotes (To Be told “The Board Considered a ‘Number of Factors’ Was to Be Told Nothing”) — Disqualification of Plaintiff’s Counsel Suggested

Attorney-Client Privilege — Common Interest Doctrine — A “Shared Desire to See the Same Outcome … Is Insufficient” (Good Quote)

Facebook Authentication: 3d Cir. Adopts Circumstantial Approach — Chats Not Self-Authenticated by 902(11) Certificate (Circuit Split) Except to Prove Chats Took Place — Hearsay: Party’s Chat = Admission & Other Side’s Words OK for Context

Prejudgment Interest Can’t Be Denied on the Ground That the Verdict Is Generous Enough — That Gives Windfall to Defendant: An Interest-Free Loan — Difficulty in Calculating Is Not A Basis to Deny

Voicemail Authentication: Self-Identification + Request to Return Call to Home Number of Self-Identifier + Contents of Message = Sufficient Circumstantial Authentication

Recent Posts

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)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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

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