Complex Lit Blog

Court May Allow Affirmative Defense to Be Raised Initially in Pretrial Order or at Summary Judgment — PSLRA’s RICO Bar Applies to Securities in Private Entities — Predicate Acts Sharing Same Purpose, Result, Victims = Single RICO Enterprise

Gilmore v. Gilmore, 2012 U.S. App. LEXIS 24403 (2d Cir. Nov. 28, 2012): Plaintiff David Gilmore ("David") appeals from the September 1, 2011 memorandum decision and order of the United States District Court for the Southern District of New York (Pauley, J.) granting summary judgment to Defendants Abby Gilmore, Arthur Freierman, and Sout ...

Gilmore v. Gilmore, 2012 U.S. App. LEXIS 24403 (2d Cir. Nov. 28, 2012): Plaintiff David Gilmore (“David”) appeals from the September 1, 2011 memorandum decision and order of the United States District Court for the Southern District of New York…

§ 1927 Sanctions — Circuit Split as to Whether Bad Faith Is Required or Recklessness Suffices — Failure to Name Counsel as Appellant Not Fatal If Appealed Order Sanctions Counsel Only — One Appellate Panel Cannot Overrule Another

McKenzie v. Norfolk S. Rwy., 2012 U.S. App. LEXIS 24171 (4th Cir. Nov. 20, 2012): Appellants next challenge the district court's entry of attorneys' fees against Schmidt under 28 U.S.C. § 1927. Prior to addressing the merits of the § 1927 sanctions, we must determine whether we have jurisdiction. *** Federal Rule of Appellate Proce ...

McKenzie v. Norfolk S. Rwy., 2012 U.S. App. LEXIS 24171 (4th Cir. Nov. 20, 2012): Appellants next challenge the district court’s entry of attorneys’ fees against Schmidt under 28 U.S.C. § 1927. Prior to addressing the merits of the §…

Rule 45(c)(1) Cannot Support a Sanction Where the Cost of Complying with the Subpoena Is Minimal and Subpoena Was Not Facially Defective or Issued in Bad Faith — Appealability of Discovery Order Relating to Out-of-Circuit Case That Is Still Pending

Mount Hope Church v. Bash Back!, 2012 U.S. App. LEXIS 24233 (9th Cir. Nov. 26, 2012): Mount Hope Church ("Mount Hope" or "the Church") appeals a sanction order granting attorneys' fees and costs to Appellees Riseup Networks ("Riseup") and Objector dkwatt@riseup.net ("dkwatt") under Federal Rule of Civil Procedure 45(c)(1). The order, wh ...

Mount Hope Church v. Bash Back!, 2012 U.S. App. LEXIS 24233 (9th Cir. Nov. 26, 2012): Mount Hope Church (“Mount Hope” or “the Church”) appeals a sanction order granting attorneys’ fees and costs to Appellees Riseup Networks (“Riseup”) and Objector…

“Illogical” Interpretation of Protective Order Constitutes Reversible Abuse of Discretion — Meaning of “All” and “Any” Is Literal

Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012): Joe Leonard Lambright appeals the decision of the district court to modify the protective order issued in his federal habeas proceeding to permit Respondent to turn over materials produced during the federal proceeding to the agency that will prosecute his resentencing, the Pima County At ...

Ponzi Schemes — Rising Tide vs. Net Loss Method of Allocating Recovered Assets — Reinvestment (in the Scheme) Wrinkle — Bankruptcy Methodology and Fraudulent Conveyance Issues

SEC v. Huber, 2012 U.S. App. LEXIS 24547 (7th Cir. Nov. 29, 2012): William Huber operated a Ponzi scheme in which 118 investors lost a total of $22.6 million. He had told his investors--mainly friends and acquaintances, who trusted him--that he administered three investment funds, using a computer trading model. He had started the funds ...

SEC v. Huber, 2012 U.S. App. LEXIS 24547 (7th Cir. Nov. 29, 2012): William Huber operated a Ponzi scheme in which 118 investors lost a total of $22.6 million. He had told his investors–mainly friends and acquaintances, who trusted him–that…

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 ...

Commercial Litigation and Arbitration

Court May Allow Affirmative Defense to Be Raised Initially in Pretrial Order or at Summary Judgment — PSLRA’s RICO Bar Applies to Securities in Private Entities — Predicate Acts Sharing Same Purpose, Result, Victims = Single RICO Enterprise

§ 1927 Sanctions — Circuit Split as to Whether Bad Faith Is Required or Recklessness Suffices — Failure to Name Counsel as Appellant Not Fatal If Appealed Order Sanctions Counsel Only — One Appellate Panel Cannot Overrule Another

Rule 45(c)(1) Cannot Support a Sanction Where the Cost of Complying with the Subpoena Is Minimal and Subpoena Was Not Facially Defective or Issued in Bad Faith — Appealability of Discovery Order Relating to Out-of-Circuit Case That Is Still Pending

“Illogical” Interpretation of Protective Order Constitutes Reversible Abuse of Discretion — Meaning of “All” and “Any” Is Literal

Ponzi Schemes — Rising Tide vs. Net Loss Method of Allocating Recovered Assets — Reinvestment (in the Scheme) Wrinkle — Bankruptcy Methodology and Fraudulent Conveyance Issues

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

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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