Complex Lit Blog

Is All Legal Advice Privileged or Only If Confidential Client Information Is Revealed? — Circuit Split — Corporate Antitrust Compliance Policy ≠ Privileged — Primarily, a Business Policy—Wide Distribution, Not Labeling It Confidential = Waiver

In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, which CertainTeed argues is shielded by the attorn ...

In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, …

§ 1447(c) Sanctions — Where No Public Information Disclosed Citizenship of Members of LLC, Except Parent Whose Citizenship Supported Diversity Jurisdiction, Removal Based on Diversity Not Sanctionable

Castleton Square, LLC v. ShopperTrak RCT Corp., 2014 U.S. Dist. LEXIS 148521 (S.D. Ind. Oct. 20, 2014): Plaintiff, Castleton Square, LLC, moves to remand the present action against ShopperTrak RCT Corporation because the parties are not completely diverse. Castleton Square also seeks an award of costs, expenses, and attorneys' fe ...

The Limits of Stipulation — Yes, There Are Things Parties Cannot Stipulate to

In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App. 3d 284, 172 Cal. Rptr. 109 (Ct. App. 1981) ("Although a r ...

In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App.…

RICO — Enterprise, Non-Fraud Claims Need Only Satisfy 8(a), Not 9(b) — Plausible Nexus between Pattern, Enterprise Essential — RICO Not Violated Every Time Two People Violate Predicates — No Need to Move for Leave to Amend; Request in Brief Enough

D. Penguin Bros. Ltd. v. City Nat’l Bank, 2014 U.S. App. LEXIS 19909 (2d Cir. Oct. 16, 2014): Plaintiffs-Appellants are two real estate developers, Pete Jacov and Avraham Glattman, and multiple corporations and limited liability companies co-owned by them (collectively, "plaintiffs"). Plaintiffs allege that defendants Dav ...

Securities — Corporate Scienter — Must Misrepresentation Be Made by Someone Harboring Scienter, Or May Someone Else Have It? If the Latter, How High in the Hierarchy Must the Speaker Be? Circuit Split — New Sixth Circuit Standard

In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate or defraud.'" In re Comshare, 183 F.3d a ...

In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate…

Supplemental Expert Reports — Need to Rely on Information Previously Unknown — Substantial Justification and Harmless Error: Four-Factor Test (Second Circuit)

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28] testimony must be accompanied by a written report which shall contain, inter alia, "a complete statement o ...

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28] testimony must be accompanied by a written report which shall contain, inter alia, "a…

Class Actions — Does American Pipe Toll Statutes of Repose? — Circuit Split

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2. The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) is not subject to American Pipe to ...

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2. The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) …

FRAP 38 Sanctions on Appellant Arguing Its Own Claims Were Too Frivolous to Support Subject Matter Jurisdiction — Utterly Frivolous Federal Claim Won’t Support Jurisdiction — Best Evidence of Value of Lawyer’s Time Is What Client Agreed to Pay

McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2] entities. 760 F.3d 674 (7th Cir. 2014). After we issued the opinion, the Outland appellants filed a petiti ...

McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2] entities. 760 F.3d 674 (7th Cir. 2014). After…

Securities — Is Pleading of Loss Causation Governed by Rule 8(a) or 9(b)? — Case Law Split

Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not address that issue because the Plaintiff has not pleaded sufficient loss causation ...

Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not…

Preliminary Injunctions — Court May Consider Hearsay Evidence on P.I. Motion — Admissibility under Federal Rules of Evidence Goes to Weight at P.I. Stage

Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014): The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing. In hearing evidence on a motion for preliminary injunction, the " ...

Commercial Litigation and Arbitration

Is All Legal Advice Privileged or Only If Confidential Client Information Is Revealed? — Circuit Split — Corporate Antitrust Compliance Policy ≠ Privileged — Primarily, a Business Policy—Wide Distribution, Not Labeling It Confidential = Waiver

§ 1447(c) Sanctions — Where No Public Information Disclosed Citizenship of Members of LLC, Except Parent Whose Citizenship Supported Diversity Jurisdiction, Removal Based on Diversity Not Sanctionable

The Limits of Stipulation — Yes, There Are Things Parties Cannot Stipulate to

RICO — Enterprise, Non-Fraud Claims Need Only Satisfy 8(a), Not 9(b) — Plausible Nexus between Pattern, Enterprise Essential — RICO Not Violated Every Time Two People Violate Predicates — No Need to Move for Leave to Amend; Request in Brief Enough

Securities — Corporate Scienter — Must Misrepresentation Be Made by Someone Harboring Scienter, Or May Someone Else Have It? If the Latter, How High in the Hierarchy Must the Speaker Be? Circuit Split — New Sixth Circuit Standard

Supplemental Expert Reports — Need to Rely on Information Previously Unknown — Substantial Justification and Harmless Error: Four-Factor Test (Second Circuit)

Class Actions — Does American Pipe Toll Statutes of Repose? — Circuit Split

FRAP 38 Sanctions on Appellant Arguing Its Own Claims Were Too Frivolous to Support Subject Matter Jurisdiction — Utterly Frivolous Federal Claim Won’t Support Jurisdiction — Best Evidence of Value of Lawyer’s Time Is What Client Agreed to Pay

Securities — Is Pleading of Loss Causation Governed by Rule 8(a) or 9(b)? — Case Law Split

Preliminary Injunctions — Court May Consider Hearsay Evidence on P.I. Motion — Admissibility under Federal Rules of Evidence Goes to Weight at P.I. Stage

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