Complex Lit Blog

Lawyer Representing Fiduciary Does Not Also Represent, Or Owe Fiduciary Duty to, Beneficiaries — Third Party Beneficiary Argument Not Reached — Lawyer for Personal Representative Not Disqualified from Being Adverse to Beneficiaries

Bain v. McIntosh, 2015 U.S. App. LEXIS 3116 (11th Cir. Mar. 2, 2015): Howard Walther and Dorothy B. Walther (collectively, the Walthers), the beneficiaries of the James Walther Revocable Life Insurance Trust (the Trust), appeal the district court's order granting summary judgment in favor of Steven Kane, Esq. and Kane and Koltun, ...

Sanctions under Rule 11 and § 1927 Reviewed for Abuse of Discretion But Invocation of Inherent Power Reviewed De Novo, Factual Findings for Clear Error — Ct. App. Can Ignore Rule 11 and 1927 If Inherent Power Sanctions OK — FRAP 38 Standard

Meyers v. Textron Fin’l Corp., 2015 U.S. App. LEXIS 5736 (5th Cir. April 9, 2015): Following a two-day show-cause hearing, the court imposed sanctions, jointly and severally, against the Meyerses and Cole for their conduct in the RMC case and the sanctions action. In a thirty-six page opinion, the court awarded Textron $79,424.21 (l ...

Federal Jurisdiction — Principal Place of Business of an Inactive Corporation — Circuit Split

Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine the PPB of a "dissolved" or "inactive" corporation ...

Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine …

Email Authentication by Distinctive Characteristics: Names of Parties & Other Employees of Involved Entities, Email Addresses, Dates — Summary Charts: 4-Factor Test & Instruction

United States v. Hoffman, 2015 U.S. Dist. LEXIS 42818 (E.D. La. April 1, 2015): Before the Court are two motions: (1) the United States' motion in limine for pretrial determination of admissibility [*2] of emails; and (2) the United States' motion to admit summary witness testimony and summary exhibits. For the rea ...

Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Camowraps, LLC v. Quantum Digital Ventures LLC, 2015 U.S. Dist. LEXIS 16091 (E.D. La. Feb. 10, 2015): Plaintiff, Camowraps, LLC ("Camowraps"), is "a leader in the business of manufacturing, selling, and distributing adhesive vinyl films and products," "which are often sold in camouflage patterns . . . [and] us ...

Texts on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages [*P12] Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were hearsay, Whitfield contends, because the ...

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages [*P12] Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were …

What Constitutes “Appearing” in an Action? Under FDCPA, Attorney’s Fees Are Awardable to a Prevailing Plaintiff’s Lawyer Who Was Not Admitted Even Pro Hac If Lawyer Did Not Appear Physically, Sign Papers or Serve as Exclusive Contact

Waite v VCG Clark Cnty. Collection Serv., LLC, 2015 U.S. App. LEXIS 4934 (9th Cir. Mar. 26, 2015): A prevailing plaintiff in an FDCPA action is entitled to an award of reasonable attorneys' fees. 15 U.S.C. § 1692k(a)(3). Where, as here, one of the plaintiff's attorneys was not admitted to practice in the forum distric ...

Texts Authenticated: Phone in Defendant’s Possession on Arrest — He Answered It while Detained, Called It His — Name of Third Party He Said Owned It Was Named in Contact List while He Was Listed as “Me” — Contains Photos of Him

Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex. Ct. App. Mar. 31, 2015): A. Authenticity of information from mobile telephone Jones frames his challenge to the admission of information from the phone as an issue of the evidence's authenticity. As a condition precedent to admissibility, the proponent of the ...

Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex. Ct. App. Mar. 31, 2015): A. Authenticity of information from mobile telephone Jones frames his challenge to the admission of information from the phone as an issue of the evidence's authenticity.…

RICO — Continuity — Duration of >1 Year in 7th Circuit — Number of Mailings May Be No Indication of Continuity of Underlying Fraudulent Activity — Only Predicates Count Toward, and Cover-Up Acts Don’t Extend, Duration (Good Quotes)

Goldring v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Generally, the predicate acts underlying a "one-shot scheme" must occur over the course of more than a year in order to form a pattern. Midwest Grinding, 976 F.2d at 1024 (collecting cases where periods of "several months ...

Goldring v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Generally, the predicate acts underlying a "one-shot scheme" must occur over the course of more than a year in order to form a pattern. Midwest Grinding,…

Email Authentication — Custodian of Records from Email Service That Emails Were Sent or Received from 3 Addresses (803(6)) + Testimony from Recipients That They Received Them + Name of Sender as Reflected on Emails

United States v. Gal, 2015 U.S. App. LEXIS 4999 (9th Cir. Mar. 27, 2015): Carpenter argues that an affidavit filed by Yahoo! Inc.'s custodian of records under Rule 902(11) of the Federal Rules of Evidence supplied insufficient foundation to admit a number of emails as evidence that Carpenter sent the emails to investors. H ...

United States v. Gal, 2015 U.S. App. LEXIS 4999 (9th Cir. Mar. 27, 2015): Carpenter argues that an affidavit filed by Yahoo! Inc.'s custodian of records under Rule 902(11) of the Federal Rules of Evidence supplied insufficient foundation to admit …

Commercial Litigation and Arbitration

Lawyer Representing Fiduciary Does Not Also Represent, Or Owe Fiduciary Duty to, Beneficiaries — Third Party Beneficiary Argument Not Reached — Lawyer for Personal Representative Not Disqualified from Being Adverse to Beneficiaries

Sanctions under Rule 11 and § 1927 Reviewed for Abuse of Discretion But Invocation of Inherent Power Reviewed De Novo, Factual Findings for Clear Error — Ct. App. Can Ignore Rule 11 and 1927 If Inherent Power Sanctions OK — FRAP 38 Standard

Federal Jurisdiction — Principal Place of Business of an Inactive Corporation — Circuit Split

Email Authentication by Distinctive Characteristics: Names of Parties & Other Employees of Involved Entities, Email Addresses, Dates — Summary Charts: 4-Factor Test & Instruction

Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Texts on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

What Constitutes “Appearing” in an Action? Under FDCPA, Attorney’s Fees Are Awardable to a Prevailing Plaintiff’s Lawyer Who Was Not Admitted Even Pro Hac If Lawyer Did Not Appear Physically, Sign Papers or Serve as Exclusive Contact

Texts Authenticated: Phone in Defendant’s Possession on Arrest — He Answered It while Detained, Called It His — Name of Third Party He Said Owned It Was Named in Contact List while He Was Listed as “Me” — Contains Photos of Him

RICO — Continuity — Duration of >1 Year in 7th Circuit — Number of Mailings May Be No Indication of Continuity of Underlying Fraudulent Activity — Only Predicates Count Toward, and Cover-Up Acts Don’t Extend, Duration (Good Quotes)

Email Authentication — Custodian of Records from Email Service That Emails Were Sent or Received from 3 Addresses (803(6)) + Testimony from Recipients That They Received Them + Name of Sender as Reflected on Emails

Recent Posts

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)

Archives

New York Office