Complex Lit Blog

Lost Profits Evidence Precluded for Failure to Disclose Calculation Under 26(A)(1)(C) — Automatic Nature of Sanctions under Rule 37(c)(1) —Factors — Good Quotes — “Abuse of Discretion” Defined — Design Strategy

Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006): Plaintiff-counter-defendant-appellant Design Strategies, Inc. ("Design") appeals from a judgment entered in the United States District Court for the Southern District of New York (Marrero, J.). The action arises out of the alleged diversion of a corporate opportun ...

Sanctions — Entry of a Default Judgment under Rule 37 for Discovery Violations — Factors — $36 Million Jury Verdict on Damages Upheld

Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively "Ross Defendants"), appeal from the district court's denial of their motions for a directed verdict and new trial after a jury awarded Plaintiff R ...

Stooksbury v. Ross, 2013 U.S. App. LEXIS 12132 (6th Cir. June 13, 2013): Defendants Michael L. Ross, the estate of his late brother, and their associates and business entities, (collectively “Ross Defendants”), appeal from the district court’s denial of their…

RICO Claim against IRS Employees Barred by 26 U.S.C. § 7433, Which Provides Exclusive Damages Remedy for Misconduct in Connection with Tax Collecting Activities

Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court's judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") in connection with the collection of their federal income tax liabiliti ...

Kenner v. Kelly, 2013 U.S. App. LEXIS 12629 (9th Cir. June 18, 2013): Brian and Kathleen Kenner appeal pro se from the district court’s judgment dismissing their action alleging that defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”)…

Arbitration — Supreme Court Rejects “Effective Vindication” Exception That Would Allow Parties to Litigate If Cost of Individually Arbitrating Federal Statutory Claim Exceeds Potential Recovery

American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (U.S. June 20, 2013): We consider whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery.*** I ...

In Pari Delicto under New York Law — Adverse Interest Exception and Sole Actor Doctrine — Supreme Court Reversal Drains Alternate Holdings of Precedential Effect Where Effect Is Lack of Subject Matter Jurisdiction

In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard ("Picard" or the "Trustee") sues in his capacity as Trustee under the Securities Investor Protection Act ("SIPA") on behalf of victims in the multi-billion-dollar Ponzi scheme worked by Bernard Madoff. The four actions presently bef ...

In re Bernard l. Madoff Inv. Secs. LLC, 2013 U.S. App. LEXIS 12551 (2d Cir. June 20, 2013): Irving Picard (“Picard” or the “Trustee”) sues in his capacity as Trustee under the Securities Investor Protection Act (“SIPA”) on behalf of…

Attorney-Client Privilege — Retainer Agreements Are Not Privileged unless They Reveal a Confidential Communication of Legal Advice, Nor Are They Protected as Work Product

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 12, 2013) (Capra, Special Master): This is a class action retainer agreement signed by Wani. Retainer agreements are not privileged, however, unless they reveal a confidential communication of legal advice — the identity of the cl ...

Sanctions — Fact That Party’s Position on Merits Is Ultimately Vindicated Does Not Relieve It of Sanctions Imposed for Violation of Discovery Orders

Linde v. Arab Bank, PLC, 2013 U.S. Dist. LEXIS 87040 (E.D.N.Y. June 14, 2013): In recent correspondence, the Bank argues that the claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, which constitute the greater number of the approximately 6000 claims in these related cases, will likely be dismissed under Kiobel v. Royal Dutc ...

Linde v. Arab Bank, PLC, 2013 U.S. Dist. LEXIS 87040 (E.D.N.Y. June 14, 2013): In recent correspondence, the Bank argues that the claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, which constitute the greater number of the…

Sanctions Appeal Mooted by Purging of Contempt, Payment of Attorneys’ Fees and Execution of Consent Judgment Settling Sanctions Issues without Reservation of Right to Appeal and to Obtain Return of Amounts Paid If Appeal Successful

RES-GA Cobblestone, LLC v. Blake Constr. & Dev., LLC, 2013 U.S. App. LEXIS 12530 (11th Cir. June 19, 2013): Grady A. Roberts, III, and his law firm Roberts, LLC, (collectively Roberts) challenge the district court's orders directing Roberts to pay a $2,000 fine, $57,000 in contempt sanctions, and the appellees' costs and fees to the tu ...

RICO Enterprise Allegedly Consisting of Corporation Plus Officers and Employees Fails, As Does One Allegedly Composed of Corporations That Operate Within A Unified Corporate Structure

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): A. Civil RICO Claim Hugo Cruz appeals from a judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, Judge), dismissing his amended complaint. On appeal, Cruz argues that the amended complaint's a ...

Discoverability of Settlement Negotiations That Are or May Be Inadmissible under Rule 408 — Burden of Persuasion — Relevance, Admissibility and Protective Order Considerations

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 18, 2013) (Capra, Special Master): The Defendant MI Windows and Doors, Inc. (“MIWD”) moves for a protective order under Fed. R. Civ. P. 26, “limiting the production of communications and documents prepared in connection with settl ...

Commercial Litigation and Arbitration

Lost Profits Evidence Precluded for Failure to Disclose Calculation Under 26(A)(1)(C) — Automatic Nature of Sanctions under Rule 37(c)(1) —Factors — Good Quotes — “Abuse of Discretion” Defined — Design Strategy

Sanctions — Entry of a Default Judgment under Rule 37 for Discovery Violations — Factors — $36 Million Jury Verdict on Damages Upheld

RICO Claim against IRS Employees Barred by 26 U.S.C. § 7433, Which Provides Exclusive Damages Remedy for Misconduct in Connection with Tax Collecting Activities

Arbitration — Supreme Court Rejects “Effective Vindication” Exception That Would Allow Parties to Litigate If Cost of Individually Arbitrating Federal Statutory Claim Exceeds Potential Recovery

In Pari Delicto under New York Law — Adverse Interest Exception and Sole Actor Doctrine — Supreme Court Reversal Drains Alternate Holdings of Precedential Effect Where Effect Is Lack of Subject Matter Jurisdiction

Attorney-Client Privilege — Retainer Agreements Are Not Privileged unless They Reveal a Confidential Communication of Legal Advice, Nor Are They Protected as Work Product

Sanctions — Fact That Party’s Position on Merits Is Ultimately Vindicated Does Not Relieve It of Sanctions Imposed for Violation of Discovery Orders

Sanctions Appeal Mooted by Purging of Contempt, Payment of Attorneys’ Fees and Execution of Consent Judgment Settling Sanctions Issues without Reservation of Right to Appeal and to Obtain Return of Amounts Paid If Appeal Successful

RICO Enterprise Allegedly Consisting of Corporation Plus Officers and Employees Fails, As Does One Allegedly Composed of Corporations That Operate Within A Unified Corporate Structure

Discoverability of Settlement Negotiations That Are or May Be Inadmissible under Rule 408 — Burden of Persuasion — Relevance, Admissibility and Protective Order Considerations

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Archives

New York Office