Complex Lit Blog

RICO: Freeze-Out Merger Does Not Constitute Fraud in the Sale of Securities within PSLRA Bar — Shareholder Cannot Show Proximate Cause If Injury Is Derivative of Harm to Corporation

Amos v. Franklin Fin’l Servs. Corp., 2011 WL 5903875 (M.D. Pa. November 22, 2011), aff’d, 2013 U.S. App. LEXIS 868 (3d Cir. Jan. 11, 2013) (the following is from the Court of Appeals’ affirmance): Matthew P. Amos and twenty four other plaintiffs have appealed the district court's order dismissing their first amended complaint for ...

Sanctions — Distinctive Rationales and Intertwined Applicability of Rule 11 and 35 U.S.C. § 285 in Patent Cases

Raylon, LLC. v. Complus Data Innovations, Inc., 700 F.3d 1361 (Fed. Cir. 2012) (Reyna, J., concurring): II. Distinct Rule 11 and § 285 Inquiries Rule 11 of the Federal Rules of Civil Procedure and 35 U.S.C. § 285 of the Patent Act offer courts distinct, yet overlapping, rationales for awarding an injured party relief. ...

“Purely Factual Material” in Work Product Document Not Subject to Production — Waiver of Privilege vs. Waiver of Work Product — Fed.R.Evid. 502 “Abolished the Dreaded Subject Matter Waiver”

Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. ("API") and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin, the government hired a consultant that prepared reports on the companies' responsibility fo ...

Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. (“API”) and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin,…

Inherent Power Sanctions: Bad Faith Required in 5th Circuit — Raising Patently Frivolous Legal Argument and Threatening Further Meritless Litigation = Bad Faith — Pro Se Litigant — Vexatious Litigant Injunction Must Be Tailored

Terra Partners v. Rabo Agrifinance, Inc., 2012 U.S. App. LEXIS 26291 (5th Cir. Dec. 21, 2012): On September 20, 2012, Steve Veigel sought to file a pro se amicus brief in support of Terra Partners. Steve Veigel has an obvious interest in this case. He is an authorized managing agent for Terra Partners, is a corporate officer for all fo ...

Spoliation Claim Mooted by Court’s Assuming Truth of Party’s Factual Position

Lawler v. Montblanc N. Am., LLC, 2013 U.S. App. LEXIS 761 (9th Cir. Jan. 11, 2013): Finally, Lawler argues that the district court abused its discretion by declining to draw a negative inference of discrimination against Defendants because they "willfully" destroyed the August 5, 2009 security tape capturing the exchange between Schmitz ...

Transmittal of Letter Drafted by Counsel Does Not Waive Privilege as to Investigation and Communications Leading up to Letter — Lawyer’s Testimony as to Process Insufficient

Le v. City of Wilmington, 480 Fed. Appx. 678 (3d Cir. 2012): c) Attorney-client privilege Finally, Le asserts that the District Court erred in refusing to compel testimony from a former lawyer working in Wilmington's legal department, Mr. Mili. During a pre-trial deposition, Le asked Mili specific questions about hi ...

Voluntary Dismissal — with or without Prejudice — Renders Order Compelling Arbitration Appealable; Stay of Action Does Not

In re Pharmacy Benefit Managers Antitrust Litig,, 2012 U.S. App. LEXIS 23432 (3d Cir. Nov. 15, 2012): AdvancePCS questions our jurisdiction to hear this appeal. Under the FAA, a party may generally not appeal from an interlocutory order "compelling arbitration" or "granting a stay" pending arbitration. 9 U.S.C. § 16(b ...

Spoliation Sanctions Inapt against Individual Where Plaintiff Put Only Entity on Notice of Possible Claim, without Notifying Individual of Prospective Claim against Him Personally — 10th Circuit Requires Bad Faith for Adverse Inference Instruction

Smith v. Nichols, 2013 U.S. App. LEXIS 16 (10th Cir. Jan. 2, 2013): Plaintiff-Appellant Tommie Smith, an inmate in the custody of the Colorado Department of Corrections ("CDOC"), appeals a jury verdict denying his claims under 42 U.S.C. § 1983 against Defendant-Appellee Sergeant Virgil Nichols, a CDOC correctional officer. 1 The jury co ...

Smith v. Nichols, 2013 U.S. App. LEXIS 16 (10th Cir. Jan. 2, 2013): Plaintiff-Appellant Tommie Smith, an inmate in the custody of the Colorado Department of Corrections (“CDOC”), appeals a jury verdict denying his claims under 42 U.S.C. § 1983…

Sanctions: Counsel Still Caused “Excess” Fees within § 1927 Despite 42 U.S.C. § 1988 Award against Client for Same Fees — Default in Responding to Motion Suffices as a Substitute for Required Finding of Bad Faith (1 Judge Dissenting)

Young Apartments, Inc. v. Town of Jupiter, 2013 U.S. App. LEXIS 383 (11th Cir. Jan. 7, 2013): Appellants William Tedards and Michael Weeks, two attorneys who represented their client, Plaintiff Young Apartments, in this civil lawsuit, appeal the district court's imposition of sanctions on them in the form of attorneys' fees under 28 U.S ...

Entity May Appeal Privilege Order to Disclose Its Data Held by Former Employee But Not by Employees’ Counsel at Its Request — Perlman Unaffected by Mohawk (Circuit Split) — Reasonable-Basis-to-Suspect-Test for Crime-Fraud Excepttion

In re Grand Jury, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012): ABC Corp., John Doe 1, and John Doe 2 are subjects of an ongoing grand jury investigation into an alleged criminal tax scheme. As part of that scheme, ABC Corp., under the direction of John Doe 1 and John Doe 2, purchased and subsequently sold numerous companies. Th ...

Commercial Litigation and Arbitration

RICO: Freeze-Out Merger Does Not Constitute Fraud in the Sale of Securities within PSLRA Bar — Shareholder Cannot Show Proximate Cause If Injury Is Derivative of Harm to Corporation

Sanctions — Distinctive Rationales and Intertwined Applicability of Rule 11 and 35 U.S.C. § 285 in Patent Cases

“Purely Factual Material” in Work Product Document Not Subject to Production — Waiver of Privilege vs. Waiver of Work Product — Fed.R.Evid. 502 “Abolished the Dreaded Subject Matter Waiver”

Inherent Power Sanctions: Bad Faith Required in 5th Circuit — Raising Patently Frivolous Legal Argument and Threatening Further Meritless Litigation = Bad Faith — Pro Se Litigant — Vexatious Litigant Injunction Must Be Tailored

Spoliation Claim Mooted by Court’s Assuming Truth of Party’s Factual Position

Transmittal of Letter Drafted by Counsel Does Not Waive Privilege as to Investigation and Communications Leading up to Letter — Lawyer’s Testimony as to Process Insufficient

Voluntary Dismissal — with or without Prejudice — Renders Order Compelling Arbitration Appealable; Stay of Action Does Not

Spoliation Sanctions Inapt against Individual Where Plaintiff Put Only Entity on Notice of Possible Claim, without Notifying Individual of Prospective Claim against Him Personally — 10th Circuit Requires Bad Faith for Adverse Inference Instruction

Sanctions: Counsel Still Caused “Excess” Fees within § 1927 Despite 42 U.S.C. § 1988 Award against Client for Same Fees — Default in Responding to Motion Suffices as a Substitute for Required Finding of Bad Faith (1 Judge Dissenting)

Entity May Appeal Privilege Order to Disclose Its Data Held by Former Employee But Not by Employees’ Counsel at Its Request — Perlman Unaffected by Mohawk (Circuit Split) — Reasonable-Basis-to-Suspect-Test for Crime-Fraud Excepttion

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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