Complex Lit Blog

FCA Doesn’t Preempt Ethics Rules — Ex-GC, Co-Plaintiffs & Counsel Disqualified — GC Disclosed More Confidences Than Needed — OK for Court to Rely on In Camera Document to See If It Was Privileged — Ethical Duties to Corp Transfer to Acquiror

United States v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013): Plaintiff appeals from the July 12, 2011 judgment of the United States District Court for the Southern District of New York (Robert P. Patterson, Judge) dismissing this qui tam action and disqualifying plaintiff, its individual members--i ...

Arbitration Agreement Contained Only in Employee Handbook That Is Subject to Unilateral Change by Employer without Notice Is Illusory and Unenforceable

Scudiero v. Radio One of Tex. II, LLC, 2013 U.S. App. LEXIS 21677 (5th Cir. Oct. 24, 2013): ***Radio One contends that the district court erred in holding that the two arbitration provisions in the employee handbook were illusory and thus unenforceable based on a provision in the handbook that expressly provided that Radio One reserv ...

Purposes of Rule 37 Sanctions — Factors — Importance of Bad Faith and Prejudice in Assessing Apt Sanction

First Mariner Bank v. Resolution Law Group, 2013 U.S. Dist. LEXIS 153299 (D. Md. Oct. 24, 2013): Courts have broad discretion to impose punitive measures on any party who fails to obey a discovery order. Fed R. Civ. P. 37(b)(2)(B); Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989); 8B Charles Al ...

When Notes Are Securities — Reves’ Family Resemblance Test — Issue of Law in Civil Cases — Notes with Durations Shorter Than Nine Months

Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection with an alleged Ponz ...

Securities and Exchange Comm'n v. Thompson, 2013 U.S. App. LEXIS 20342 (10th Cir. Oct. 4, 2013): This appeal arises out of a civil-enforcement action brought by the Securities and Exchange Commission ("SEC") against Defendant-Appellant Ralph W. Thompson, Jr., in connection…

Circuit Splits Created with Trepidation — Good Quotes

Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It is sufficient for us to say that Mr. Anderson has failed to offer us any cog ...

Anderson v. Private Capital Grp., Inc., 2013 U.S. App. LEXIS 20613 (10th Cir. Oct. 10, 2013): We need not reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit. It…

Can a Party Consent to the Bankruptcy Court Entering a Final Order in a Core Matter Otherwise Barred by Stern v. Marshall? — Circuit Split

In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a core matter that would normally be prohibited by Stern. There is currently a circuit split o ...

In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a …

Rule 26(a)(1) Damages Disclosure — “Substantial Justification” and Harmless Error — No Requirement That Expert Perform Complicated Initial Disclosures

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure re ...

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ …

RICO — Deprivation of Workers Comp ≠ Injury to Business or Property But Personal Injury — Clear Statement Canon of Interpretation — “The Most Liberal Construction of RICO Is Not Always the Proper One” — Good Quotes

Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 2013 U.S. App. LEXIS 19495 (6th Cir. Sept. 24, 2013): Clifton Jackson and Christopher Scharnitzke were employees of Coca-Cola Enterprises, Inc. ("Coca-Cola") who suffered work-related injuries. They applied for workers' compensation benefits from Coca-Cola through Sedgwick ...

Under New York Choice of Law Principles, If Parties Assume or Agree That New York Law Controls, It Does

Tripoint Global Equities, LLC v. Fasolino, 2013 U.S. Dist. LEXIS 150271 (S.D.N.Y. Oct. 18, 2013): Having resolved the usury counts, the next substantive issue is the legal malpractice claim against Weiss in Count One. Both parties assume that New York law applies to the legal malpractice claim, but they do not directly add ...

Extension of 30-Day Period within Which to File Notice of Appeal — Factors to Prove Excusable Neglect or Good Cause

Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review "for abuse of discretion a district court's decision to grant or deny an extension of time to file a notice of appeal." Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004). Pursuant to Federal ...

Commercial Litigation and Arbitration

FCA Doesn’t Preempt Ethics Rules — Ex-GC, Co-Plaintiffs & Counsel Disqualified — GC Disclosed More Confidences Than Needed — OK for Court to Rely on In Camera Document to See If It Was Privileged — Ethical Duties to Corp Transfer to Acquiror

Arbitration Agreement Contained Only in Employee Handbook That Is Subject to Unilateral Change by Employer without Notice Is Illusory and Unenforceable

Purposes of Rule 37 Sanctions — Factors — Importance of Bad Faith and Prejudice in Assessing Apt Sanction

When Notes Are Securities — Reves’ Family Resemblance Test — Issue of Law in Civil Cases — Notes with Durations Shorter Than Nine Months

Circuit Splits Created with Trepidation — Good Quotes

Can a Party Consent to the Bankruptcy Court Entering a Final Order in a Core Matter Otherwise Barred by Stern v. Marshall? — Circuit Split

Rule 26(a)(1) Damages Disclosure — “Substantial Justification” and Harmless Error — No Requirement That Expert Perform Complicated Initial Disclosures

RICO — Deprivation of Workers Comp ≠ Injury to Business or Property But Personal Injury — Clear Statement Canon of Interpretation — “The Most Liberal Construction of RICO Is Not Always the Proper One” — Good Quotes

Under New York Choice of Law Principles, If Parties Assume or Agree That New York Law Controls, It Does

Extension of 30-Day Period within Which to File Notice of Appeal — Factors to Prove Excusable Neglect or Good Cause

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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