Complex Lit Blog

Sanctions — Inherent Power Sanctions Require Clear and Convincing Proof of Bad Faith in Fifth Circuit — Imputation of Counsel’s Bad Faith Here Insufficient

In re Moore (Cadle v. Moore), 2014 U.S. App. LEXIS 470 (5th Cir Jan. 9, 2014): The Cadle Company ("Cadle") is a creditor of the bankruptcy estate of James H. Moore, III ("Moore"). Cadle originally brought suit against Moore in state court. After Moore filed for bankruptcy, Cadle removed its action to the bankruptcy ...

Service of Process via Facebook Alone Inadequate to Satisfy Due Process — Use of Facebook to Effect Supplemental Service May Be Permissible

Joe Hand Promotions, Inc. v. Carrette, 2013 U.S. Dist. LEXIS 109731 (D. Kan. July 9, 2013): The plaintiff, Joe Hand Promotions, Inc., is a television distributor of pay-per-view and closed circuit special events. Plaintiff claims that the defendants, Mario Carrette and M & B, Inc., both doing business as "EL TAPATIO," unlawf ...

RICO Proximate Cause — Substantial Factor Test — Needn’t Be Sole Cause — Small Business Enterprise Subcontractor Whose Prime Lost Bids Due to SBE Fraud by Other Subs and Their Prime States Claim — Good Bridge v. Phoenix Bond Analysis

Corcel Corp. v. Ferguson Enters., Inc., 2014 U.S. App. LEXIS 2385 (11th Cir. Feb. 7, 2014): Appellant-Plaintiff Corcel Corporation, Inc. ("Corcel") sued Appellees-Defendants Ferguson Enterprises, Inc. ("Ferguson"), Line--Tec, Inc. ("LT") and AKA Services, Inc. ("AKA") (collectively &quo ...

Corcel Corp. v. Ferguson Enters., Inc., 2014 U.S. App. LEXIS 2385 (11th Cir. Feb. 7, 2014): Appellant-Plaintiff Corcel Corporation, Inc. ("Corcel") sued Appellees-Defendants Ferguson Enterprises, Inc. ("Ferguson"), Line–Tec, Inc. ("LT") and AKA Services, Inc. ("AKA") (collectively "the defendants") for alleged…

Spoliation — Range of Sanctions Available Depending on Culpability — Bad Faith Not Prerequisite to Adverse Inference Instruction in Sixth Circuit — Meaning of Abuse of Discretion

Ross v. Am. Red Cross, 2014 U.S. App. LEXIS 1827 (6th Cir. Jan. 27, 2014): We review a district court's decision not to impose spoliation sanctions for abuse of discretion, "'[g]iving great deference to the district court's credibility determinations and findings of fact.'" Adkins v. Wolever, 692 F.3 ...

Sanctions — Rule 37 and Spoliation Standards in Second Circuit — Bad Faith and Consideration of Lesser Alternatives Prerequisite to Dismissal — Contractual Right to Attorneys’ Fees for Prevailing Party Enforceable in New York

Metro Found. Contractors, Inc. v. Arch Ins. Co., 2014 U.S. App. LEXIS 589 (2d Cir. Jan. 13 2014): Metro Foundation Contractors, Inc., ("Metro") appeals the district court's judgment in favor of Marco Martelli Associates ("MMA") on its claims for breach of contract and indemnification and dismissing Metro's ...

Must SEC Plead and Prove Scienter on a Claim That a Director or Officer Made a Materially False Statement to an Auditor? Circuit Split — Agency’s Interpretation of Own Rules Entitled to Controlling Weight If Consistent with Statute

SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to an accountant in connection with SEC filings, among other things."

SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to …

When a Statute Is Best Applied Uniformly, Compelling Reason Required to Convince Court to Create Circuit Split

Sachs v. Republic of Austria, 737 F.3d 583 (9th Cir. 2013): Because Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity, and because we think that Congress intended to permit suit in the United States against foreign sovereign common carriers that sell tickets in the United States ...

Website Evidence / Pleading and Practice — Court May Not Take Judicial Notice of Website That Is Not Self-Authenticating on Dismissal Motion in Third Circuit — Authentication Required

McGown v. Silverman & Borenstein, PLLC, 2014 U.S. Dist. LEXIS 12823 (D. Del. Feb. 3, 2014): While McGown conclusorily states S&B is a "debt collector" in her Complaint, she further details collection activities undertaken by S&B including collection activities for Capital One and actions taken to collect the debt from McGown ...

Facebook Evidence — Social Media Authentication — Delaware Adopts Texas Approach: Let the Jury Decide, Once the Trial Judge Determines That a Reasonable Jury Could Find the Social Network Evidence Authentic

Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her Facebook profile. The Superior Court admitted the evidence under ...

Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her …

28 U.S.C. § 1782 — Eleventh Circuit Withdraws Opinion Holding that Foreign Arbitration Is a “Proceeding” for Which § 1782 Discovery May Be Obtained — But Has It?

Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note: this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion in this case, issued on June 25, 2012 and published at 685 F.3d 987 (11th Cir. 2012), an ...

Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note: this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion…

Commercial Litigation and Arbitration

Sanctions — Inherent Power Sanctions Require Clear and Convincing Proof of Bad Faith in Fifth Circuit — Imputation of Counsel’s Bad Faith Here Insufficient

Service of Process via Facebook Alone Inadequate to Satisfy Due Process — Use of Facebook to Effect Supplemental Service May Be Permissible

RICO Proximate Cause — Substantial Factor Test — Needn’t Be Sole Cause — Small Business Enterprise Subcontractor Whose Prime Lost Bids Due to SBE Fraud by Other Subs and Their Prime States Claim — Good Bridge v. Phoenix Bond Analysis

Spoliation — Range of Sanctions Available Depending on Culpability — Bad Faith Not Prerequisite to Adverse Inference Instruction in Sixth Circuit — Meaning of Abuse of Discretion

Sanctions — Rule 37 and Spoliation Standards in Second Circuit — Bad Faith and Consideration of Lesser Alternatives Prerequisite to Dismissal — Contractual Right to Attorneys’ Fees for Prevailing Party Enforceable in New York

Must SEC Plead and Prove Scienter on a Claim That a Director or Officer Made a Materially False Statement to an Auditor? Circuit Split — Agency’s Interpretation of Own Rules Entitled to Controlling Weight If Consistent with Statute

When a Statute Is Best Applied Uniformly, Compelling Reason Required to Convince Court to Create Circuit Split

Website Evidence / Pleading and Practice — Court May Not Take Judicial Notice of Website That Is Not Self-Authenticating on Dismissal Motion in Third Circuit — Authentication Required

Facebook Evidence — Social Media Authentication — Delaware Adopts Texas Approach: Let the Jury Decide, Once the Trial Judge Determines That a Reasonable Jury Could Find the Social Network Evidence Authentic

28 U.S.C. § 1782 — Eleventh Circuit Withdraws Opinion Holding that Foreign Arbitration Is a “Proceeding” for Which § 1782 Discovery May Be Obtained — But Has It?

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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