Complex Lit Blog

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 ...

RICO — Open-Ended Continuity Sufficiently Alleged Where Phony Banker Bilked Series of Victims over Three Years and Continues to Advertise His Fraudulent Enterprise

CVLR Performance Horses, Inc. v. Wynne, 2013 U.S. App. LEXIS 10799 (4th Cir. May 29, 2013): Because this appeal stems from a dismissal under Rule 12(b)(6), we accept the facts as alleged in CVLR's Amended Complaint. See Martin Marietta v. Int'l. Tel. Satellite Org., 991 F.2d 94, 97 (4th Cir. 1992). Wynne is the sole owner of Rivermont a ...

When Federal Court Has Neither Diversity Nor Federal Question Jurisdiction Exists, § 1367 Does Not Confer Discretion to Exercise Supplemental Jurisdiction over State Law Claims

Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer's contract-based claim for attorneys' fees and expenses, federal jurisdiction must be based upon the district court's supplemental jurisdiction under ...

Dakota, Minnesota & Eastern Railroad Corp. v. Schieffer, 2012 U.S. App. LEXIS 26936 (8th Cir. May 30, 2012): As there is neither diversity nor federal question jurisdiction over Schieffer’s contract-based claim for attorneys’ fees and expenses, federal jurisdiction must be…

Defendant Cannot Moot Class Action by Offering Named Plaintiff Less Than Everything Sued for Simply Because, on the Merits, Plaintiff Is Entitled to Less — Rule 68 vs. Mootness — Merits vs. Standing

Hrivnak v. NCO Portfolio Mgmt., Inc., 2013 U.S. App. LEXIS 11687 (6th Cir. June 11, 2013): Christopher Hrivnak sued several debt-management companies and a law firm, (1) claiming they violated federal and state law when they dunned him on several credit-card debts and (2) seeking to obtain monetary and injunctive relief on behalf of a ...

Mohawk Applies to Privileged Material Held by Non-Party, Bars Appellate Review of Order Requiring Disclosure under Collateral Order or Perlman or Pragmatic Finality Doctrine — Mandamus Denied

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013): This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively "the Cooks"), and Copar Pumice Company, Inc. ("Copar") for trespass, conversion, and unjust en ...

Supreme Court: Erroneous Decision by Arbitrator That Clause Authorizes Class Arbitration Is Unreviewable — But This May Be an Issue of Arbitrability for the Court — Concurrence: Absent Class Members Not Bound

Oxford Health Plans LLC v. Sutter, 2013 U.S. LEXIS 4358 (U.S. June 10, 2013): Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them. See Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 684, 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010). In this cas ...

Commercial Litigation and Arbitration

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

RICO — Open-Ended Continuity Sufficiently Alleged Where Phony Banker Bilked Series of Victims over Three Years and Continues to Advertise His Fraudulent Enterprise

When Federal Court Has Neither Diversity Nor Federal Question Jurisdiction Exists, § 1367 Does Not Confer Discretion to Exercise Supplemental Jurisdiction over State Law Claims

Defendant Cannot Moot Class Action by Offering Named Plaintiff Less Than Everything Sued for Simply Because, on the Merits, Plaintiff Is Entitled to Less — Rule 68 vs. Mootness — Merits vs. Standing

Mohawk Applies to Privileged Material Held by Non-Party, Bars Appellate Review of Order Requiring Disclosure under Collateral Order or Perlman or Pragmatic Finality Doctrine — Mandamus Denied

Supreme Court: Erroneous Decision by Arbitrator That Clause Authorizes Class Arbitration Is Unreviewable — But This May Be an Issue of Arbitrability for the Court — Concurrence: Absent Class Members Not Bound

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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