Complex Lit Blog

Must RICO Damages Be Clear and Definite? — Circuit Split — State Work Comp Statute Cannot Bar Federal RICO Remedy for Fraudulent Denial of Benefits — Rooker-Feldman Inapplicable

Jackson v. Segwick [Sedgwick] Claims Mgmt. Servs., 2012 U.S. App. LEXIS 22557 (6th Cir. Nov. 2, 2012) (note: highly divided 3-judge panel): I. BACKGROUND Clifton Jackson was employed by Coca-Cola when he allegedly injured his lumbosacral spine at work in September 2007. R. 2 (Am. Compl. ¶31A) (Page ID #39). Ja ...

Equitable Estoppel as Basis for Compelling Arbitration against Non-Signatory — Claim Must Arise out of an Obligation Created by Contract Containing the Arbitration Clause

Weingarten Realty Investors v. Miller, 2012 U.S. App. LEXIS 21984 (5th Cir. Oct. 22, 2012): ***WRI and Miller Sheriden, LLC ("Miller Sheriden"), an LLC organized by Miller, created a joint venture, Weingarten Miller Sheriden ("WMS"), and WRI loaned that joint venture $75,000,000 under a Loan Agreement between WRI and WMS. The Loan Ag ...

Weingarten Realty Investors v. Miller, 2012 U.S. App. LEXIS 21984 (5th Cir. Oct. 22, 2012): ***WRI and Miller Sheriden, LLC (“Miller Sheriden”), an LLC organized by Miller, created a joint venture, Weingarten Miller Sheriden (“WMS”), and WRI loaned that joint…

First-Filed Rule — Required Degree of Overlap between Actions —- Is Complete Identity of Parties Required? (Circuit Split) — Exceptions: “Improper Anticipatory Actions” and “Balance of Convenience and Interest of Justice”

Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg ... commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. ... and MetLife, Inc. ... seeking to recover both unpaid overtime and minimum wa ...

Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg … commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. … and MetLife,…

Rule 37(c)(1) — Factors for Determining Whether a Failure to Disclose or Make Discovery Is Harmless

Battle vs. O'Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): "Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory ... unless non-disclosure was justified or harmless." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (internal quotations marks omitted). The Seventh Circuit has ...

Battle vs. O’Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): “Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory … unless non-disclosure was justified or harmless.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir.…

No Sanctions Imposed for Plaintiff’s Filing and Prosecuting Suit in Face of Potentially Meritorious Affirmative Defense of Res Judicata

C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney's fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains that sanctions and attorney's fees were appropriate in this case because C.H. Robinson i ...

C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney’s fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains…

Emails Offered on State of Mind ≠ Hearsay — in Employment Discrimination Case, Complaints Emailed by Employee’s Supervisor to Her Superior Admissible to Show Recipient’s Belief, in Discharging Employee, That Employee Had Acted Badly

Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson's former supervisors, Carol Redman. Ms. Dickerson argues that these email messages are cited by Holsten for the truth of Ms. Redman's statements making them inadmiss ...

Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson’s former supervisors, Carol Redman. Ms. Dickerson argues that these email messages…

Arbitration / Sanctions — Claim Party Was Fraudulently Induced to Enter Contract, as Opposed to Just Arbitration Clause, Is for Arbitrator to Decide — Even If Rule 11 Violated, Sanctions Are Discretionary

Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. ("Leadsinger"), a company that sold, inter alia, karaoke systems. Between October 2005 and September 2008, Leadsinger and Costco entered ...

Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. (“Leadsinger”), a company that sold, inter alia,…

Arbitration — Elements for Proving Fraud in Procuring Award — Error of Expert Witness Insufficient — Error of Fact or Law by Arbitrators ≠ Reversible Act of Exceeding Their Powers

Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, "Appellants") alleged that Defendant-Appellee Morgan Keegan & Company, Inc. ("Morgan Keegan") engaged in a fraudulent scheme that induced Appellants to invest substantially in four highly risky mutual funds t ...

Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, “Appellants”) alleged that Defendant-Appellee Morgan Keegan & Company, Inc. (“Morgan Keegan”) engaged in a fraudulent scheme that induced…

Class Actions — Circuit Split as to Whether Standing Should Be Addressed Prior to Class Certification

Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 133634 (N.D. Okla. Sept. 19, 2012): The Tenth Circuit has indicated that courts should generally address standing prior to class certification. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011) ("Prior to class certification, the named plaintiffs' failure t ...

Courts of Appeal Are Loath to Create a Circuit Split — Policy Reasons behind Avoidance

Two Cases: 1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012): [T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) ("[T]he Tenth Circuit's decision . . . is th ...

Commercial Litigation and Arbitration

Must RICO Damages Be Clear and Definite? — Circuit Split — State Work Comp Statute Cannot Bar Federal RICO Remedy for Fraudulent Denial of Benefits — Rooker-Feldman Inapplicable

Equitable Estoppel as Basis for Compelling Arbitration against Non-Signatory — Claim Must Arise out of an Obligation Created by Contract Containing the Arbitration Clause

First-Filed Rule — Required Degree of Overlap between Actions —- Is Complete Identity of Parties Required? (Circuit Split) — Exceptions: “Improper Anticipatory Actions” and “Balance of Convenience and Interest of Justice”

Rule 37(c)(1) — Factors for Determining Whether a Failure to Disclose or Make Discovery Is Harmless

No Sanctions Imposed for Plaintiff’s Filing and Prosecuting Suit in Face of Potentially Meritorious Affirmative Defense of Res Judicata

Emails Offered on State of Mind ≠ Hearsay — in Employment Discrimination Case, Complaints Emailed by Employee’s Supervisor to Her Superior Admissible to Show Recipient’s Belief, in Discharging Employee, That Employee Had Acted Badly

Arbitration / Sanctions — Claim Party Was Fraudulently Induced to Enter Contract, as Opposed to Just Arbitration Clause, Is for Arbitrator to Decide — Even If Rule 11 Violated, Sanctions Are Discretionary

Arbitration — Elements for Proving Fraud in Procuring Award — Error of Expert Witness Insufficient — Error of Fact or Law by Arbitrators ≠ Reversible Act of Exceeding Their Powers

Class Actions — Circuit Split as to Whether Standing Should Be Addressed Prior to Class Certification

Courts of Appeal Are Loath to Create a Circuit Split — Policy Reasons behind Avoidance

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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