Complex Lit Blog

Securities Act — Limitations — Discovery, Not Inquiry Notice, Standard Applies to ’33 Act — Need Not Plead Compliance with SOL — Inquiry Notice Applies to RICO — One Panel May “Reevaluate” Another’s Decision If New Supreme Court Case

Pension Fund for Operating Eng’rs v. Mortg. Asset Securitization Transactions, Inc., 2013 U.S. App. LEXIS 19166 (3d Cir. Sept. 17, 2013): Lead Plaintiff Pension Trust Fund for Operating Engineers (the "Operating Engineers") appeal from the District Court's initial order dismissing without prejudice their amended c ...

RICO — Statute of Limitations — Separate Accrual Rule — Factors — Reaffirmations of Prior Acts and Continuation of Earlier Injury Do Not Start New Limitations Period

Lehman v. Lucom, 2013 U.S. App. LEXIS 17947 (11th Cir. Aug. 28, 2013): Civil actions under the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, are subject to a four-year statute of limitations. See Rotella v. Wood, 528 U.S. 549, 553, 120 S. Ct. 1075, 1080-81, 145 L. Ed. 2d 1047 (2000). Under th ...

Sanctions — Due Process Demands More Specific Notice for Client Than for Lawyer — Bad Faith for Inherent Power Sanctions Is Judged by an Objective Standard

Dial HD, Inc. v. ClearOne Commc’ns, 2013 U.S. App. LEXIS 19241 (11th Cir. Sept. 18, 2013): First, we find unavailing Bowers's argument that he did not receive adequate notice of the district court's intent to use its inherent power to impose sanctions. A district court may impose sanctions using its inherent power &qu ...

Erie Doctrine: Federal Court Attempting to Predict State Law on a Matter of First Impression May Consider the Case Law of Other Jurisdictions

Vechten v. Elenson, 920 F. Supp. 2d 1284 (S.D. Fla. 2013): "[A] federal court attempting to forecast state law" on a matter of first impression "may consider the case law of other jurisdictions," see Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005)***. < ...

Failure to Collect Evidence Available to, But Not in the Possession of, a Party Does Not Constitute Spoliation

United States v. Greco, 2013 U.S. App. LEXIS 17264 (6th Cir. Aug. 20, 2013): Defendant Thomas Greco was convicted at the end of a three-week jury trial on charges of bribery and conspiracy to commit bribery involving programs receiving federal funds (18 U.S.C. § 666(a)(1)(B) and § 371), violation of and conspiracy to violate the Ho ...

Work Product Protection Extends to Oral Communications, Facts, and the Identity of Persons Interviewed by Counsel or Investigators, But Not to Identity of Interviewers

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (party asserting work pr ...

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated…

Joinder — Do Defendants Who Participate in BitTorrent File-Sharing — As a Swarm — Engage in a Single Transaction or in a Series of Closely Related Transactions within Rule 20? Caselaw Split

TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013): This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint, Doc. No. 1, ¶ 5. Defendants are identified only by internet prot ...

Motions for Reconsideration — Strict Standard — S.D.N.Y. Local Rule — Complaint Urging Positions Previously Rejected or Which District Court Advises Counsel Are Frivolous Merits Rule 11 Sanctions — Mistake, Inexperience No Defense

Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review the denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003). A district court abuses its discretion when its decision: (1) is based on "an e ...

RICO — Beneficiary of Estate Has No Standing to Sue for RICO Violation Committed against Estate — No Proximate Cause, Hence No Injury

Schrager v. Aldana, 2013 U.S. App. LEXIS 19313 (3d Cir. Sept. 19, 2013): Appellant Arnold Schrager alleges that Appellee Jennifer Aldana conspired with Karen Lipton and Russell Rosenblatt to defraud the estate of Roslyn Schrager, the mother of Appellant and Lipton, for over $1 million. The United States District Court for the Distric ...

Inherent Power Sanctions in Criminal Cases Must Take Counsel’s Constitutional Function into Account — Improper to Give No Warning, Then “Sanction Counsel for Defying the Court’s Unstated Expectations” (Good Quote)

United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.): Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine im ...

United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.): Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine…

Commercial Litigation and Arbitration

Securities Act — Limitations — Discovery, Not Inquiry Notice, Standard Applies to ’33 Act — Need Not Plead Compliance with SOL — Inquiry Notice Applies to RICO — One Panel May “Reevaluate” Another’s Decision If New Supreme Court Case

RICO — Statute of Limitations — Separate Accrual Rule — Factors — Reaffirmations of Prior Acts and Continuation of Earlier Injury Do Not Start New Limitations Period

Sanctions — Due Process Demands More Specific Notice for Client Than for Lawyer — Bad Faith for Inherent Power Sanctions Is Judged by an Objective Standard

Erie Doctrine: Federal Court Attempting to Predict State Law on a Matter of First Impression May Consider the Case Law of Other Jurisdictions

Failure to Collect Evidence Available to, But Not in the Possession of, a Party Does Not Constitute Spoliation

Work Product Protection Extends to Oral Communications, Facts, and the Identity of Persons Interviewed by Counsel or Investigators, But Not to Identity of Interviewers

Joinder — Do Defendants Who Participate in BitTorrent File-Sharing — As a Swarm — Engage in a Single Transaction or in a Series of Closely Related Transactions within Rule 20? Caselaw Split

Motions for Reconsideration — Strict Standard — S.D.N.Y. Local Rule — Complaint Urging Positions Previously Rejected or Which District Court Advises Counsel Are Frivolous Merits Rule 11 Sanctions — Mistake, Inexperience No Defense

RICO — Beneficiary of Estate Has No Standing to Sue for RICO Violation Committed against Estate — No Proximate Cause, Hence No Injury

Inherent Power Sanctions in Criminal Cases Must Take Counsel’s Constitutional Function into Account — Improper to Give No Warning, Then “Sanction Counsel for Defying the Court’s Unstated Expectations” (Good Quote)

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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