Complex Lit Blog

Joint Defense / Common Interest — When the Common Interest Must Exist — Elements of Advice of Counsel Defense— Waiver of Attorney-Client Privilege vs. Waiver of Work Product Protection

SEC v. Reserve Mgmt. Co., 2012 U.S. Dist. LEXIS 147723 (S.D.N.Y. Sept. 12, 2012): ● “The common interest rule is concerned with the relationship between the transferor and the transferee at the time that the confidential information is disclosed. The fact that the parties’ interests have diverged over the course of t ...

Federal Common Law, Not State Law, Provides the Meaning of “Arbitration” in the Federal Arbitration Act — Circuit Split

Bakoss v Certain Underwriters at Lloyd's, 2013 U.S. App. LEXIS 1527 (2d Cir. Jan. 23, 2013): The parties entered into a Certificate of Insurance ("Certificate"), which they agree is an enforceable contract. Bakoss, 2011 U.S. Dist. LEXIS 110834, 2011 WL 4529668, at *7. The Certificate provided for the payment of a benefit to Bakoss in th ...

Bakoss v Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 1527 (2d Cir. Jan. 23, 2013): The parties entered into a Certificate of Insurance (“Certificate”), which they agree is an enforceable contract. Bakoss, 2011 U.S. Dist. LEXIS 110834, 2011 WL…

Spoliation: Permissive Adverse Inference Instruction Typically Appropriate for Negligent Destruction of Evidence Where Opponent Not Denied Ability to Make or Defend Its Case — Severity of Sanction Should Correspond to Degree of Fault

Arch Ins. Co. v. Broan-Nutone, LLC, 2012 U.S. App. LEXIS 26464 (6th Cir. Dec. 21, 2012): This case arises out of a fire that occurred at Montgomery County Fire Station 1 in Mt. Sterling, Kentucky, on September 17, 2007. Plaintiff Montgomery County Fire Protection District 1 was compensated for the resulting property damage by its insura ...

Sixth Circuit Spoliation Standards for Adverse Inference Instruction

Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] "party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed wi ...

Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] “party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an…

RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO's "Venue and Process" section, § 1965(a), "does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant is found." PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F. ...

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO’s “Venue and Process” section, § 1965(a), “does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant…

Fact that RICO Claim Would Not Exist But for Plaintiff’s Entry into Contract Is Insufficient to Permit Non-Signatories to Assert Equitable Estoppel to Enforce Forum Selection Clause — Court Will Apply Law All Parties Assume Is Applicable

Bahamas Sales Assoc., LLC v. Ginn Fin’l Servs., LLC, 2012 U.S. App. LEXIS 24887 (11th Cir. Dec. 4, 2012): In late 2006, Donald Cameron Byers purchased a lot in the Bahamas. His purchase contract contains a provision that requires all disputes to be litigated in the Bahamas under Bahamian law. Byers financed the purchase with a mor ...

When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Paradigm Biodevices, Inc. -v- Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312 (S.D.N.Y. Jan. 17, 2013): By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to produce a draft report prepared by Zolfo Cooper (the "Report"), an entity appointed by an English court as liquidator of Surgicraft, and other communi ...

Even If Rule 11 Violated, Court Has Discretion to Deny Sanctions — § 1927 Requires “Conduct Constituting or Akin to Bad Faith” — Once Claim Is Adjudicated, Res Judicata Bars More Litigation under Different Theory or Seeking New Remedy

WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music's complaint for substantially the same reasons stated by the district court. In sum, WD Music's second state-court action was brought to a final conclusion by the New York State Supreme Court's dismissal on res judica ...

WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music’s complaint for substantially the same reasons stated by the district court. In sum, WD Music’s second state-court…

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. ...

Commercial Litigation and Arbitration

Joint Defense / Common Interest — When the Common Interest Must Exist — Elements of Advice of Counsel Defense— Waiver of Attorney-Client Privilege vs. Waiver of Work Product Protection

Federal Common Law, Not State Law, Provides the Meaning of “Arbitration” in the Federal Arbitration Act — Circuit Split

Spoliation: Permissive Adverse Inference Instruction Typically Appropriate for Negligent Destruction of Evidence Where Opponent Not Denied Ability to Make or Defend Its Case — Severity of Sanction Should Correspond to Degree of Fault

Sixth Circuit Spoliation Standards for Adverse Inference Instruction

RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Fact that RICO Claim Would Not Exist But for Plaintiff’s Entry into Contract Is Insufficient to Permit Non-Signatories to Assert Equitable Estoppel to Enforce Forum Selection Clause — Court Will Apply Law All Parties Assume Is Applicable

When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Even If Rule 11 Violated, Court Has Discretion to Deny Sanctions — § 1927 Requires “Conduct Constituting or Akin to Bad Faith” — Once Claim Is Adjudicated, Res Judicata Bars More Litigation under Different Theory or Seeking New Remedy

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

Recent Posts

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)

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

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