Complex Lit Blog

Securities — Nature and Extent of § 16(b) Liability — Violation of Statutorily-Imposed Fiduciary Duty to Issuer Defeats Argument That Derivative Plaintiff Lacks Constitutional Standing — Violation of Statutorily-Granted Right = Injury in Fact

Donoghue v. Bulldog Investors G.P., 696 F.3d 170 (2d Cir. 2012): Defendants Bulldog Investors General Partnership and principal Phillip Goldstein (collectively, "Bulldog") appeal from a judgment entered on March 31, 2011, by the United States District Court for the Southern District of New York (Denise L. Cote, Judge), in favor of plain ...

Donoghue v. Bulldog Investors G.P., 696 F.3d 170 (2d Cir. 2012): Defendants Bulldog Investors General Partnership and principal Phillip Goldstein (collectively, “Bulldog”) appeal from a judgment entered on March 31, 2011, by the United States District Court for the Southern…

Res Judicata / Collateral Estoppel May Form Valid Defenses to Motion to Compel Arbitration

Saucier v. Aviva Life & Annuity Co., 2012 U.S. App. LEXIS 23531 (5th Cir. Nov. 16, 2012): Under the Mississippi Structured Settlement Protection Act ("MSSPA"), no direct or indirect transfer of structured settlement payment rights is effective unless a court finds, among other things, that the transfer is in the best interest of the se ...

Saucier v. Aviva Life & Annuity Co., 2012 U.S. App. LEXIS 23531 (5th Cir. Nov. 16, 2012): Under the Mississippi Structured Settlement Protection Act (“MSSPA”), no direct or indirect transfer of structured settlement payment rights is effective unless a court…

Pro Se Litigant Subject to Inherent Power Sanctions for Maintaining Identical Legal Position Rejected in Earlier Case without Reasonable Arguments to Justify Reiteration

Palmer v. Comm’r of Internal Revenue, 2012 U.S. App. LEXIS 24293 (10th Cir. Nov. 27, 2012): The Commissioner asks that we impose $8,000 in sanctions on Palmer for maintaining a frivolous appeal. According to the Commissioner, we have already rejected Palmer's arguments as frivolous in his prior proceeding before this court, and furthe ...

Sanctions — Pro Se Litigants Must File Separate Motion and Provide 21-Day Safe Harbor — Lawyer as Pro Se Litigant Held to Higher Standard — Post-Dismissal, Court Retains Jurisdiction to Sanction

Metro. Life Ins. Co. v. Kalenevitch, 2012 U.S. App. LEXIS 22262 (3d Cir. Oct. 26, 2012): In 2010, Metropolitan Life Insurance Company ("MetLife") filed a complaint seeking a declaratory judgment that would identify the party entitled to the remaining balance of proceeds (approximately $24,094.13) under an annuity contract. MetLife conte ...

Metro. Life Ins. Co. v. Kalenevitch, 2012 U.S. App. LEXIS 22262 (3d Cir. Oct. 26, 2012): In 2010, Metropolitan Life Insurance Company (“MetLife”) filed a complaint seeking a declaratory judgment that would identify the party entitled to the remaining balance…

Class Action Fairness Act Jurisdiction — Circuit Split as to How to Determine Whether a State Is a Real Party in Interest in a Parens Patriae Action — Claim-by-Claim vs. Wholesale Approach to Reading Complaint

Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that "a crucial distinction must be made between a plaintiff who sues solely in his capacity as an agent, on the one hand, and, on the other, a plaintiff who sues ...

Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that “a crucial distinction must be made between a plaintiff who sues solely…

Confronting Argument That Binding Supreme Court Decision Is Wrong: “Whether or Not the Supreme Court Is Infallible, It Is Final,” and “It Belongs to That Court … to Decide Whether to Revisit Its Precedent” — Good Quotes

Woolsey v. Citibank, N.A., 696 F.3d 1266 (10th Cir. 2012): Before us, though, the Woolseys don't just shrink from, they repudiate the only possible winning argument they may have had. They choose to pursue instead and exclusively a line of attack long foreclosed by Supreme Court precedent. To be sure, the Woolseys argue vigorously and w ...

Woolsey v. Citibank, N.A., 696 F.3d 1266 (10th Cir. 2012): Before us, though, the Woolseys don’t just shrink from, they repudiate the only possible winning argument they may have had. They choose to pursue instead and exclusively a line of…

RICO — 9(b) Standards Relaxed Where Fraud Entails Concealing Identity of Speakers — RICO Conspiracy Claim Fails Absent Allegation That Defendants Knew the Alleged Acts Were Part of a Pattern of Racketeering

Grant v. Turner, 2012 U.S. App. LEXIS 24316 (3d Cir. Nov. 27, 2012): In May 2009, a group of putative class action Plaintiffs brought suit against various individual and corporate Defendants, alleging that those Defendants were involved in creating and perpetuating fraudulent travel clubs ("Travel Club Defendants"). Plaintiffs alleged t ...

Failure to Appeal Magistrate Judge’s Decision to District Court in Timely Fashion Waives Objections

Shell’s Disposal & Recycling, Inc. v. City of Lancaster, 2012 U.S. App. LEXIS 23549 (3d Cir. Nov. 16, 2012): Footnote 9. To the extent that Shell's Disposal challenges Judge Wells's authority to issue the January 15, 2010 order closing the case, that claim is also unavailing. The Company had the right to appeal or file objections ...

Shell’s Disposal & Recycling, Inc. v. City of Lancaster, 2012 U.S. App. LEXIS 23549 (3d Cir. Nov. 16, 2012): Footnote 9. To the extent that Shell’s Disposal challenges Judge Wells’s authority to issue the January 15, 2010 order closing the…

Circuit Split as to Proper Standard of Review — De Novo or Abuse of Discretion — to Determine Whether Evidence Falls within Rule 404(b); Factors Guiding 404(b) Determination

Pierce v. Virga, 2012 U.S. Dist. LEXIS 166663 (E.D. Cal. Nov. 21, 2012): There is a split among the circuit courts as to the proper standard of review, de novo or abuse of discretion, to be applied to the question of whether evidence falls within the scope of Rule 404(b). The Ninth Circuit applies a de novo standard, [United ...

Consulting Expert Retained by Client Prior to Anticipation of Litigation Not Immune from Discovery — Rule 26(b)(4)(D) Inapplicable

Quality Time, Inc. v. West Bend Mutual Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012): Rule 26(b)(4)(B) states that "Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded." The rule does not otherwise protect expert reports ...

Quality Time, Inc. v. West Bend Mutual Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012): Rule 26(b)(4)(B) states that “Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of…

Commercial Litigation and Arbitration

Securities — Nature and Extent of § 16(b) Liability — Violation of Statutorily-Imposed Fiduciary Duty to Issuer Defeats Argument That Derivative Plaintiff Lacks Constitutional Standing — Violation of Statutorily-Granted Right = Injury in Fact

Res Judicata / Collateral Estoppel May Form Valid Defenses to Motion to Compel Arbitration

Pro Se Litigant Subject to Inherent Power Sanctions for Maintaining Identical Legal Position Rejected in Earlier Case without Reasonable Arguments to Justify Reiteration

Sanctions — Pro Se Litigants Must File Separate Motion and Provide 21-Day Safe Harbor — Lawyer as Pro Se Litigant Held to Higher Standard — Post-Dismissal, Court Retains Jurisdiction to Sanction

Class Action Fairness Act Jurisdiction — Circuit Split as to How to Determine Whether a State Is a Real Party in Interest in a Parens Patriae Action — Claim-by-Claim vs. Wholesale Approach to Reading Complaint

Confronting Argument That Binding Supreme Court Decision Is Wrong: “Whether or Not the Supreme Court Is Infallible, It Is Final,” and “It Belongs to That Court … to Decide Whether to Revisit Its Precedent” — Good Quotes

RICO — 9(b) Standards Relaxed Where Fraud Entails Concealing Identity of Speakers — RICO Conspiracy Claim Fails Absent Allegation That Defendants Knew the Alleged Acts Were Part of a Pattern of Racketeering

Failure to Appeal Magistrate Judge’s Decision to District Court in Timely Fashion Waives Objections

Circuit Split as to Proper Standard of Review — De Novo or Abuse of Discretion — to Determine Whether Evidence Falls within Rule 404(b); Factors Guiding 404(b) Determination

Consulting Expert Retained by Client Prior to Anticipation of Litigation Not Immune from Discovery — Rule 26(b)(4)(D) Inapplicable

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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