Complex Lit Blog

Existence of Circuit Split on Meaning Does Not Itself Establish That Statutory Text Is Ambiguous

Cuellar De Osorio v. Napalitano, 695 F.3d 1003 (9th Cir. 2012): The existence of a circuit split does not itself establish ambiguity in the text of the CSPA [Child Status Protection Act]. See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 182 L. Ed. 2d 341 (2012) (holding that § 906(c) of the Longshore and Harbo ...

Six Months’ of Litigation Insufficient to Forfeit Right to Arbitrate, with Decent Excuse — How Little Is Required to Prove “Interstate Commerce” Triggering FAA — State Choice of Law Clause Does Not Trump FAA

Rota-McLarty v. Santander Consumer USA, Inc., 2012 U.S. App. LEXIS 24447 (4th Cir Nov. 28, 2012): Rota-McLarty filed a putative class action in state court against Santander on March 9, 2010, alleging violations of various Maryland consumer protection laws for undisclosed finance charges and other unfair business practices. On April 13 ...

Securities — True Statements About Statistical Results Are Not False or Misleading Simply Because the Methodology Producing Them Was Not the Best or Most Accepted

In re Rigel Pharm., Inc. Secs. Litig., 697 F.3d 869 (9th Cir. 2012): Neither the Supreme Court nor this court has addressed the question of whether statements concerning statistical results of a clinical trial may be considered false or misleading under Rule 10b-5 because the statistical methodology that produced those results was n ...

Sanctions Reversed Where Inference of Bad Faith Drawn in Part from Conduct of Others — “[O]nly Conduct Explicitly Referred to in the Instrument Providing Notice Is Sanctionable”

Cameron Int’l Trading Co. v. Hawk Importers, Inc., 2012 U.S. App. LEXIS 22294 (2d Cir. Oct. 25, 2012): Movants J. Curtis Edmondson and Scott D. Frendel (collectively "movants"), defendants' counsel in this matter, appeal from a January 18, 2011, memorandum and order finding that they violated Federal Rule of Civil Procedure 11(b) an ...

Cameron Int’l Trading Co. v. Hawk Importers, Inc., 2012 U.S. App. LEXIS 22294 (2d Cir. Oct. 25, 2012): Movants J. Curtis Edmondson and Scott D. Frendel (collectively “movants”), defendants’ counsel in this matter, appeal from a January 18, 2011, memorandum…

Wilton Abstention — Although Court Has Discretion to Abstain If Federal Plaintiff Seeks Only Declaratory Relief, There Is a 5-Way Circuit Split If Complaint Seeks Both Coercive (Damages, Injunction) and Declaratory Relief

Rolon v. Univision TV Group, Inc., 2012 U.S. Dist. LEXIS 141019 (D. P.R. Sept 27, 2012): Univision also argues that this Court has discretion to abstain under Wilton v. Seven Falls, 515 U.S. 277 (1995), because Plaintiffs request declaratory relief. While this would be true if Plaintiffs had only requested declaratory relief, the fact t ...

Imposition of Vexatious Litigant Sanctions in Prior Case, and Earlier Judge’s Warning That Future Harassing Litigation Would Be Sanctioned, Does Not Excuse Lack of Notice Before Imposing Sanctions for New Conduct in New Case — Due Process Denied

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012) (note: citation subject to change when headnotes added by LEXIS): Here, the district court did not provide adequate notice to Truong prior to imposing either leave-to-file or financial sanctions, as it did not inform him, in the present proceeding, that it was c ...

Work Product Protects Consulting Expert Even If Investigation in Part for Business Reasons “Unless the Documents Would Have Been Created in Essentially Similar Form Irrespective of the Litigation” — Factors Weighing Against Discovery

Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 2012 U.S. Dist. LEXIS 165334 (N.D. Ga. Nov. 20, 2012): B. Dual Purpose: Anticipation of Litigation vs. Ordinary Course of Business Pike asserts that the documents at issue here, i.e. communications with and reports prepared by consulting experts, were prepared "i ...

“Actual and Ascertainable Damages” Required to State Legal Malpractice Claim in New York

Campbell v. Planet Asef Realty, 35 Misc. 3d 131A, 951 N.Y.S.2d 85, 2012 N.Y. Misc. LEXIS 1807 (App. Term 2d Dept. 2012): To prevail in an action for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal professi ...

Expert Whose Report Is Attached to and Incorporated in Earlier Iteration of Complaint Is Subject to Deposition Even If Not Identified as Testifying Expert

In re iPhone, iPad App. Consumer Privacy Litig., 2012 U.S. Dist. LEXIS 166711 (N.D. Cal. Nov. 21, 2012): In this multi-district consolidated class action suit, Plaintiffs Isabella and Alejandro Capiro ("Capiros") seek a protective order to prevent Defendant Apple, Inc. ("Apple") from deposing Samy Kamkar ("Kamkar"), an "independent secu ...

In re iPhone, iPad App. Consumer Privacy Litig., 2012 U.S. Dist. LEXIS 166711 (N.D. Cal. Nov. 21, 2012): In this multi-district consolidated class action suit, Plaintiffs Isabella and Alejandro Capiro (“Capiros”) seek a protective order to prevent Defendant Apple, Inc.…

Sanctions — Due Process Notice Requirement Unsatisfied Where Court Relied on Warnings and Sanctions Imposed in Earlier Case Because Earlier Judge Did Not Deal with the Specific Conduct in the Current Case

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012): "Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions." Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999) (citation and internal quotation marks omitted). Specifically, ...

Truong v. Nguyen, 2012 U.S. App. LEXIS 23827 (2d Cir. Nov. 20, 2012): “Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions.” Schlaifer Nance & Co. v. Estate of Warhol, 194…

Commercial Litigation and Arbitration

Existence of Circuit Split on Meaning Does Not Itself Establish That Statutory Text Is Ambiguous

Six Months’ of Litigation Insufficient to Forfeit Right to Arbitrate, with Decent Excuse — How Little Is Required to Prove “Interstate Commerce” Triggering FAA — State Choice of Law Clause Does Not Trump FAA

Securities — True Statements About Statistical Results Are Not False or Misleading Simply Because the Methodology Producing Them Was Not the Best or Most Accepted

Sanctions Reversed Where Inference of Bad Faith Drawn in Part from Conduct of Others — “[O]nly Conduct Explicitly Referred to in the Instrument Providing Notice Is Sanctionable”

Wilton Abstention — Although Court Has Discretion to Abstain If Federal Plaintiff Seeks Only Declaratory Relief, There Is a 5-Way Circuit Split If Complaint Seeks Both Coercive (Damages, Injunction) and Declaratory Relief

Imposition of Vexatious Litigant Sanctions in Prior Case, and Earlier Judge’s Warning That Future Harassing Litigation Would Be Sanctioned, Does Not Excuse Lack of Notice Before Imposing Sanctions for New Conduct in New Case — Due Process Denied

Work Product Protects Consulting Expert Even If Investigation in Part for Business Reasons “Unless the Documents Would Have Been Created in Essentially Similar Form Irrespective of the Litigation” — Factors Weighing Against Discovery

“Actual and Ascertainable Damages” Required to State Legal Malpractice Claim in New York

Expert Whose Report Is Attached to and Incorporated in Earlier Iteration of Complaint Is Subject to Deposition Even If Not Identified as Testifying Expert

Sanctions — Due Process Notice Requirement Unsatisfied Where Court Relied on Warnings and Sanctions Imposed in Earlier Case Because Earlier Judge Did Not Deal with the Specific Conduct in the Current Case

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

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