Complex Lit Blog

Rule 11 — Refiling and Failing to Withdraw Complaint Repeating Dismissed Claims Warrants Attorney’s Fees for the Cost of the Motion to Strike

Shine v. Bayonne Bd. of Educ., 2015 U.S. App. LEXIS 16771 (3d Cir. Sept. 22, 2015): Deborah Shine appeals the dismissal with prejudice of her employment discrimination and constitutional claims against the Bayonne Board of Education (the "Board"), as well as the subsequent grant of sanctions against her attorney. Because Shi ...

Judicial Notice of Internet Evidence — Corporate Party’s Website Judicially Noticed for Fact That Corporation Is Active, Not Defunct, Contrary to Its Counsel’s Representations on Motion to Withdraw

Caveman Foods, LLC v. Ann Payne’s Caveman Foods, LLC, 2015 U.S. Dist. LEXIS 150001 (E.D. Cal. Nov. 4, 2015): Plaintiff Caveman Foods, LLC, a California limited liability company, filed this action against defendant Ann Payne's Caveman Foods, LLC, a Pennsylvania limited liability company, asserting claims for trademark infringeme ...

YouTube Admissibility — Content Posted on a Party’s YouTube Account by the Party Is Admissible as an Admission — Party Has No Reasonable Expectation of Privacy as to Posted Material

Stotler v. Alvarado, 2012 Del. Super. LEXIS 1098 (Del. Super. Nov. 7, 2012): D. Plaintiff's Motion to Preclude Defendants' Use of Videos and Commentary Uploaded to Plaintiff's YouTube Account Lastly, Plaintiff filed a motion seeking to preclude Defendants' use of material from Plaintiff's o ...

Stotler v. Alvarado, 2012 Del. Super. LEXIS 1098 (Del. Super. Nov. 7, 2012): D. Plaintiff's Motion to Preclude Defendants' Use of Videos and Commentary Uploaded to Plaintiff's YouTube Account Lastly, Plaintiff filed a motion seeking to preclude Defendants' use of…

RICO Class Action over Illegal Pyramid Scheme Not Certifiable Based on Inference of Reliance on Presumed Legality — Plaintiffs Could’ve Sought to Profit from Illegality — No Causation, Especially Where Illegality May Have Been Been Disclosed

Torres v. SGE Mgmt., LLC, 2015 U.S. App. LEXIS 17974 (5th Cir. Oct. 16, 2015): Stream Energy, its marketing arm Ignite, and a number of other defendants (collectively, the "Defendants") appeal the district court's order certifying a class of some 150,000 plaintiffs (the "Plaintiffs") in this civil action brough ...

§ 1927 Sanctions — Filing Even a “Manifestly Deficient” Amended Complaint at Court’s Invitation Doesn’t Needlessly Multiply the Proceedings, But Filing Deficient Papers to Defend It Does Do So

Nollner v. S. Baptist Convention, Inc., 2015 U.S. App. LEXIS 18270 (6th Cir. Oct. 16, 2015): Ron and Beverly Nollner appeal the district court's order granting defendants' motion to dismiss, and denying the Nollners' motion for leave to amend. Even though the Nollners agreed to a choice-of-law provision stating tha ...

Attorney-Client Privilege — Crime-Fraud — Prima Facie Showing (Factors) — More Stringent Standard If Very Act of Litigating Is Alleged to Further the Fraud — Does It Matter If Mohawk Overruled Perlman? (Circuit Split)

In re Grand Jury Subpoenas, 2015 U.S. App. LEXIS 17633 (2d Cir Oct. 6, 2015): Intervenor-appellant is an investment company (the "Company") whose president and owner (the "Owner") is the subject of an ongoing grand jury investigation into tax fraud. On June 5, 2015, the United States District Court for the Southern ...

Error to Deny Amendment Because Plaintiff Stood on Complaint after Premotion Conference — Request to Amend in Brief Enough — Group Pleading OK for Common Law Fraud — Fraud Need Only Be As Plausible As Other Explanations—Corporate Scienter Defined

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec. LLC, 797 F.3d 160 (2d Cir. 2015): This case, like so many others of late, concerns liability for investment losses. Specifically, it asks who, if anyone, ought to shoulder legal blame for losses suffered as part of the recent financial crisis. Plaintiffs-Appellants--whose names are ...

RICO — Third-Party Payers Whose Pharmacy Benefits Managers Relied on Pharma Manufacturer’s Misrepresentations to Authorize Reimbursement State Concrete Injury and Bridge-Like Causation

In re Avandia Mktg. Sales Pracs. & Prod. Liab. Litig., 2015 U.S. App. LEXIS 18633 (3d Cir. Oct. 26, 2015): This interlocutory appeal involves claims brought against GlaxoSmithKline LLC (GSK) by third-party payors (TPPs), based on GSK's alleged misrepresentation and concealment of the significant safety risks associated ...

In re Avandia Mktg. Sales Pracs. & Prod. Liab. Litig., 2015 U.S. App. LEXIS 18633 (3d Cir. Oct. 26, 2015): This interlocutory appeal involves claims brought against GlaxoSmithKline LLC (GSK) by third-party payors (TPPs), based on GSK's alleged misrepresentation and …

Email Authentication — Act of Producing Emails Implicitly Authenticates Them — Circumstantial Authentication (Factors)

Finnegan v. Myers,2015 U.S. Dist. LEXIS 119715 (N.D. Ind. Sept. 8, 2015): Exhibit 26 The State Defendants also argue that Exhibit 26 (DE #224-26) should be stricken in its entirety because it contains inadmissible hearsay. The Plaintiffs disagree and assert that the information is being offered "to show the inform ...

Spoliation — Plaintiff (IT Expert) Barred from Offering Documents after Running 5 Programs That Wiped Out Potential Evidence She Fabricated Them — Willfulness vs. Bad Faith — No Adverse Inference But Instruction Jury May Consider Events

Ericksen v. Kaplan Higher Education, LLC, 2015 U.S. Dist. LEXIS 142789 (D. Md. Oct. 21, 2015): Plaintiff Karen Ericksen filed this case against Defendants Kaplan Higher Education, LLC and TESST-KAP, LLC, alleging employment-related violations of federal and Maryland state law. (Am. Compl., ECF No. 16.) This case has been referred to m ...

Commercial Litigation and Arbitration

Rule 11 — Refiling and Failing to Withdraw Complaint Repeating Dismissed Claims Warrants Attorney’s Fees for the Cost of the Motion to Strike

Judicial Notice of Internet Evidence — Corporate Party’s Website Judicially Noticed for Fact That Corporation Is Active, Not Defunct, Contrary to Its Counsel’s Representations on Motion to Withdraw

YouTube Admissibility — Content Posted on a Party’s YouTube Account by the Party Is Admissible as an Admission — Party Has No Reasonable Expectation of Privacy as to Posted Material

RICO Class Action over Illegal Pyramid Scheme Not Certifiable Based on Inference of Reliance on Presumed Legality — Plaintiffs Could’ve Sought to Profit from Illegality — No Causation, Especially Where Illegality May Have Been Been Disclosed

§ 1927 Sanctions — Filing Even a “Manifestly Deficient” Amended Complaint at Court’s Invitation Doesn’t Needlessly Multiply the Proceedings, But Filing Deficient Papers to Defend It Does Do So

Attorney-Client Privilege — Crime-Fraud — Prima Facie Showing (Factors) — More Stringent Standard If Very Act of Litigating Is Alleged to Further the Fraud — Does It Matter If Mohawk Overruled Perlman? (Circuit Split)

Error to Deny Amendment Because Plaintiff Stood on Complaint after Premotion Conference — Request to Amend in Brief Enough — Group Pleading OK for Common Law Fraud — Fraud Need Only Be As Plausible As Other Explanations—Corporate Scienter Defined

RICO — Third-Party Payers Whose Pharmacy Benefits Managers Relied on Pharma Manufacturer’s Misrepresentations to Authorize Reimbursement State Concrete Injury and Bridge-Like Causation

Email Authentication — Act of Producing Emails Implicitly Authenticates Them — Circumstantial Authentication (Factors)

Spoliation — Plaintiff (IT Expert) Barred from Offering Documents after Running 5 Programs That Wiped Out Potential Evidence She Fabricated Them — Willfulness vs. Bad Faith — No Adverse Inference But Instruction Jury May Consider Events

Recent Posts

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

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