Complex Lit Blog

When Class Counsel’s Misconduct Requires Denial of Certification — Ethical Standards — “Only the Most Egregious Misconduct”

Reliable Money Order, Inc. v. McKnight Sales Co., 2013 U.S. App. LEXIS 501 (7th Cir. Jan. 9, 2013): The Ashford Gear litigation was the first to consider whether counsels' misconduct required denial of class certification. Like McKnight here, the defendant in Ashford Gear opposed class certification, arguing the same misconduct that Mc ...

Reliable Money Order, Inc. v. McKnight Sales Co., 2013 U.S. App. LEXIS 501 (7th Cir. Jan. 9, 2013): The Ashford Gear litigation was the first to consider whether counsels’ misconduct required denial of class certification. Like McKnight here, the defendant…

Certain Purely Legal Rulings, Including Sanctions Rulings, May Be Subject to Abuse of Discretion Review

United States v. Gonza-Les-Flores, 701 F.3d 112 (4th Cir. 2012): On June 14, 2011, two days before Gonzales-Flores's jury trial on these charges was scheduled to begin, the government informed his counsel that it intended to call three expert witnesses. Gonzales-Flores's counsel filed a motion in limine seeking to exclude the witnesses' ...

United States v. Gonza-Les-Flores, 701 F.3d 112 (4th Cir. 2012): On June 14, 2011, two days before Gonzales-Flores’s jury trial on these charges was scheduled to begin, the government informed his counsel that it intended to call three expert witnesses.…

Arbitration — Lingering Circuit Split over Viability of Manifest Disregard — Sixth Circuit’s Take

Schafer v. Multiband Corp., 2013 U.S. Dist. LEXIS 22057 (E.D. Mich. Feb. 19, 2013): Prior to Hall Street, the circuits unanimously recognized "manifest disregard" as a ground for vacatur. Since, however, the circuits have split over whether manifest disregard survives. See generally Leigh F. Gill, Note, Manifest Disregard After ...

Schafer v. Multiband Corp., 2013 U.S. Dist. LEXIS 22057 (E.D. Mich. Feb. 19, 2013): Prior to Hall Street, the circuits unanimously recognized “manifest disregard” as a ground for vacatur. Since, however, the circuits have split over whether manifest disregard survives.…

Supreme Court — No Federal Jurisdiction Exists over State Court Legal Malpractice Claims Arising out of Patent Matters, Except Perhaps Rarely

Gunn v. Minton, 2013 U.S. LEXIS 1612 (U.S. Feb. 20, 2013): Federal courts have exclusive jurisdiction over cases "arising under any Act of Congress relating to patents." 28 U. S. C. §1338(a). The question presented is whether a state law claim alleging legal malpractice in the handling of a patent case must be brought in federal court. ...

Gunn v. Minton, 2013 U.S. LEXIS 1612 (U.S. Feb. 20, 2013): Federal courts have exclusive jurisdiction over cases “arising under any Act of Congress relating to patents.” 28 U. S. C. §1338(a). The question presented is whether a state law…

Article III Standing May Exist Despite Absence of Proximate Cause — Injury May Still Be Sufficiently Traceable to Defendant’s Conduct — ATA Imposes Same Causation Standard as RICO and Clayton Act

Rothstein v. - UBS AG, 2013 U.S. App. LEXIS 3244 (2d Cir. Feb. 14, 2013): Plaintiffs Rachel Rothstein et al. appeal from a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff, Judge, dismissing their action brought under the Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2331 et seq., against defe ...

Rothstein v. – UBS AG, 2013 U.S. App. LEXIS 3244 (2d Cir. Feb. 14, 2013): Plaintiffs Rachel Rothstein et al. appeal from a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff,…

Final Argument — Are Golden Rule Arguments Improper If Directed to Liability Instead of Damages? — Circuit Split — D.C. Circuit Says They Are Improper — Send-a-Message Final Argument Sometimes OK — Duty to Play by the Rules (Good Quote)

Caudle v. District of Columbia, 2013 U.S. App. LEXIS 3213 (D.C. Cir. Feb. 15, 2013): Appellees Frazier Caudle, Nikeith Goins, William James, Sholanda Miller and Donald Smalls (collectively, appellees) sued the District of Columbia (District), their employer, for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ ...

Arbitration — District Court’s Use of Equitable Estoppel to Compel Arbitration with Non-Signatory Is Reviewed De Novo — Mere Allegation of Conspiracy Insufficient to Trigger Equitable Estoppel — Intertwining of Claim & Contract Key

In re: Wholesale Grocery Products Antitrust Litigation, 2013 U.S. App. LEXIS 2949 (2d Cir. Feb. 13, 2013): Appellants Blue Goose Super Market, Inc. ("Blue Goose"), Millennium Operations, Inc. ("Millennium"), and King Cole Foods, Inc. ("King Cole") all have supply and arbitration agreements with Appellee SuperValu, Inc. ("SuperValu") ...

In re: Wholesale Grocery Products Antitrust Litigation, 2013 U.S. App. LEXIS 2949 (2d Cir. Feb. 13, 2013): Appellants Blue Goose Super Market, Inc. (“Blue Goose”), Millennium Operations, Inc. (“Millennium”), and King Cole Foods, Inc. (“King Cole”) all have supply and…

Authentication of GPS and Google Earth Evidence — No Expert Required — Knowledgeable, Trained Technician Sufficient — No Reversible Error If Authenticating Evidence Follows, Rather Than Precedes, Introduction into Evidence

United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012): An undercover United States Customs Task Force operation involving efforts on land, at sea, and in the air, ended with the arrests of the defendants, Saturnino Tatis-Núñez ("Tatis"), César Hernández-De la Rosa ("Hernández"), Carlos Espinal-Almeida ("Espinal"), and Jaco ...

Issues Not Raised in Appellate Brief, Even Pro Se, Waived — Meaning of “Abuse of Discretion” in Second Circuit

Chien v. BarronCapital Advisors, LLC, 2012 U.S. App. LEXIS 26813 (2d Cir. Jan. 30, 2012): "We review an award of Rule 11 sanctions for abuse of discretion." Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir. 2010) (per curiam) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). "An 'abuse of discretion' o ...

Chien v. BarronCapital Advisors, LLC, 2012 U.S. App. LEXIS 26813 (2d Cir. Jan. 30, 2012): “We review an award of Rule 11 sanctions for abuse of discretion.” Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir.…

RICO — Mail Fraud — Proving Reliance Remains Essential Where It Is Integral to Plaintiff’s Theory of Causation

Hoffman v. Zenith Ins. Co., 487 F. App’x 365 (9th Cir. 2012): A RICO plaintiff must establish standing to sue under RICO's private right of action, 18 U.S.C. § 1964(c), by demonstrating "that the defendants' alleged misconduct proximately caused [the plaintiffs'] injury." Sosa v. DIRECTV, Inc., 437 F.3d 923, 941 (9th Cir. 2006) (inte ...

Hoffman v. Zenith Ins. Co., 487 F. App’x 365 (9th Cir. 2012): A RICO plaintiff must establish standing to sue under RICO’s private right of action, 18 U.S.C. § 1964(c), by demonstrating “that the defendants’ alleged misconduct proximately caused [the…

Commercial Litigation and Arbitration

When Class Counsel’s Misconduct Requires Denial of Certification — Ethical Standards — “Only the Most Egregious Misconduct”

Certain Purely Legal Rulings, Including Sanctions Rulings, May Be Subject to Abuse of Discretion Review

Arbitration — Lingering Circuit Split over Viability of Manifest Disregard — Sixth Circuit’s Take

Supreme Court — No Federal Jurisdiction Exists over State Court Legal Malpractice Claims Arising out of Patent Matters, Except Perhaps Rarely

Article III Standing May Exist Despite Absence of Proximate Cause — Injury May Still Be Sufficiently Traceable to Defendant’s Conduct — ATA Imposes Same Causation Standard as RICO and Clayton Act

Final Argument — Are Golden Rule Arguments Improper If Directed to Liability Instead of Damages? — Circuit Split — D.C. Circuit Says They Are Improper — Send-a-Message Final Argument Sometimes OK — Duty to Play by the Rules (Good Quote)

Arbitration — District Court’s Use of Equitable Estoppel to Compel Arbitration with Non-Signatory Is Reviewed De Novo — Mere Allegation of Conspiracy Insufficient to Trigger Equitable Estoppel — Intertwining of Claim & Contract Key

Authentication of GPS and Google Earth Evidence — No Expert Required — Knowledgeable, Trained Technician Sufficient — No Reversible Error If Authenticating Evidence Follows, Rather Than Precedes, Introduction into Evidence

Issues Not Raised in Appellate Brief, Even Pro Se, Waived — Meaning of “Abuse of Discretion” in Second Circuit

RICO — Mail Fraud — Proving Reliance Remains Essential Where It Is Integral to Plaintiff’s Theory of Causation

Recent Posts

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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