Complex Lit Blog

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014): First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely on it when identifying unknown pills, the prosecu ...

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014): First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely …

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet Be honest, be clear, be done with it. As columnists know, a word limit ...

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet Be honest, be clear, be done with it. As columnists know, a word limit focuses the mind and helps the reader. Lehman Brothers’ 2007 annual report…

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or f ...

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails…

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge the suspension order are meritorious, we affirm. I. Th ...

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1. The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in the Mondrian Opinion, American Pipe tolling suspends the app ...

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1. The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in…

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009): In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of her expert witness's testimony and the resulting grant of summary judgment t ...

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Tavares v. S-L Dist. Co., 2014 U.S. Dist. LEXIS 146414 (M.D. Pa. June 12, 2014): Initially, we note that neither the Third Circuit nor Pennsylvania courts have addressed the particular choice-of-law issue before us. However, that the issue is one of first impression does not make a prima facie case for certification of appeal ...

Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Blount v. Northrup Grumman Info. Tech. Overseas, Inc., 2014 U.S. Dist. LEXIS 146407 (E.D. Va. Oct. 14, 2014): Before considering the merits of this motion, this Court must first address Blount's untimely filing. Blount's opposition was approximately one month late. At no point did Blount move for an extension of time. S ...

Recusal — 28 U.S.C. § 455 — Displeasure with Judge’s Legal Rulings Is Not an Adequate Basis for Recusal (Good Quote)

Collura v City of Phila., 2014 U.S. App. LEXIS 20810 (3d Cir. Oct. 27, 2014): B. Denial of Motions for Recusal To the extent that Collura seeks review of District [*7] Court orders denying his motions for recusal, we reiterate what we said when denying Collura's petition for a writ of m ...

Collura v City of Phila., 2014 U.S. App. LEXIS 20810 (3d Cir. Oct. 27, 2014): B. Denial of Motions for Recusal To the extent that Collura seeks review of District [*7] Court orders denying his motions for recusal, we reiterate…

RICO — Hobbs Act: Hard Bargaining vs. Wrongful Use of Fear — Claim of Right Not Beaten by Claim Deal Lacks Subjective Value — Contract Breach ≠ “Wrongful” — State Statute Labels vs. Substance — Complaint Length Defeats Motion to Amend

United Brotherhood of Carpenters v. Building & Constr. Trades Dep’t, 2014 U.S. App. LEXIS 20667 (9th Cir. Oct. 28, 2014): We must decide whether a labor union's use of economic pressure is extortion under the Racketeer Influenced and Corrupt Organizations Act. I The Building and Constructi ...

United Brotherhood of Carpenters v. Building & Constr. Trades Dep’t, 2014 U.S. App. LEXIS 20667 (9th Cir. Oct. 28, 2014): We must decide whether a labor union's use of economic pressure is extortion under the Racketeer Influenced and Corrupt Organizations …

Commercial Litigation and Arbitration

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Motion to Dismiss May Be Granted without Reaching Merits If It Is Unopposed — The Failure to Respond Is Viewed as a Concession or Dismissal Is Deemed an Appropriate Sanction for Failure to Respond

Recusal — 28 U.S.C. § 455 — Displeasure with Judge’s Legal Rulings Is Not an Adequate Basis for Recusal (Good Quote)

RICO — Hobbs Act: Hard Bargaining vs. Wrongful Use of Fear — Claim of Right Not Beaten by Claim Deal Lacks Subjective Value — Contract Breach ≠ “Wrongful” — State Statute Labels vs. Substance — Complaint Length Defeats Motion to Amend

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)

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