Complex Lit Blog

Sanctions — No Appellate Jurisdiction to Reverse Erroneous Award Where Notice of Appeal Filed Only after Opinion Granting Sanctions (Nonfinal) But Not after Fees Quantified and Awarded (Final) — FRAP 4(a)(2), 4(a)(4)(B)(i) Do Not Save Appeal

Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman's contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice as required under Rule 11(c)(1). Notice plays a central part in the Rule 11 process, as ...

Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman’s contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice…

Circuit Split as to Whether Daubert Applies at Class Certification — Supreme Court Has Granted Cert in Case Implicating This Issue and May Resolve It This Term

In re Rail Freight Fuel Surcharge Antitrust Litig., 2012 U.S. Dist. LEXIS 134241 (D.D.C. Sept. 20, 2012): Defendants correctly identify a circuit split as to whether a district court must address Daubert challenges at the class certification stage. Compare Am. Honda Co. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010) ("[T]he distri ...

RICO — No PSLRA Bar to Tax Shelter Suit against Law Firm for Opinion Letters — Securities Only Incidental to the Fraud — 4 Letters over 5 Years (3 of Them within 2 Months) Satisfy Continuity

Ouwinga v. Benistar 419 Plan Services, Inc., 2012 U.S. App. LEXIS 19632 (6th Cir. Sept. 19, 2012): Plaintiff-Appellants Stephen, Leann, David, and Christine Ouwinga and their company, Stoney Creek Fisheries and Equipment, Inc., (the "Ouwingas") appeal the dismissal of their Complaint against various Defendant-Appellees related to a pur ...

Daubert Safeguards “Not as Essential” in Bench Trial — Expert Testimony Based on Industry Experience That Does Not Rest on Scientific Principles Does Not Require Scientific Substantiation

Lightfoot v. MXEnergy Elec., Inc., 690 F.3d 352 (5th Cir. 2012): Under Federal Rules of Evidence 702 and 703, the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony. The Supreme Court has provided factors to inform the reliability determination, but the inquiry is a "flexible" one, and trial c ...

Authentication of Website Evidence by Testimony of Downloading Witness That Printout Accurately Reflects Page at Time Printout Was Made

Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): "Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made" before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evid ...

Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): “Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at…

Contours of Commercial Activity Exception of the Foreign Sovereign Immunities Act

Terenkian v. Republic of Iraq, 2012 U.S. App. LEXIS 19557 (9th Cir. Sept. 18, 2012): Pentonville Developers, Ltd., and Marblearch Trading, Ltd., two Cyprus oil brokerage companies, sued the Republic of Iraq for unilaterally terminating two contracts for the purchase and sale of Iraqi oil. The district court held it had subject matter ju ...

Spoliation — Adverse Inference at Bench Trial Does Not Preclude Verdict for Spoliator — Inference Is Permissive, Not Mandatory

Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012): Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to preserve a surveillance videotape that may have recorded the incident. The district court fo ...

Eighth Circuit Reserves on Question Whether Spoliation Sanctions Are Ever Appropriate in a Criminal Case

United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court's refusal to give a spoliation instruction based upon the DEA's destruction of the videotape violated his constitutional due process rights. Davis's arguments on this point are admittedly reiterative of his suppression argument ...

United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court’s refusal to give a spoliation instruction based upon the DEA’s destruction of the videotape violated his constitutional due process rights. Davis’s…

Official Government Website Evidence Is Admissible in New York State

Vandenberg Inc. v. Townhouse 84, LLC, 2012 N.Y. Misc. LEXIS 4420, 2012 NY Slip Op 32351U (Sup. Ct. N.Y. Cnty. Sept. 7, 2012): Of this evidence that Townhouse 84, LLC, is an LLC separate from 45 West 84th Street, LLC, at least the latter documents, from an official government web site, are admissible. LaSonde v. Seabrook, 89 A ...

Sanctions — Circuit Splits: (1) No Vicarious Liability under § 1927 — (2) No Bad Faith Required for § 1927 Sanctions

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court's Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on Catlett [plaintiff’s counsel] and would not apply to Gibson [plaintiff] ...

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court’s Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on…

Commercial Litigation and Arbitration

Sanctions — No Appellate Jurisdiction to Reverse Erroneous Award Where Notice of Appeal Filed Only after Opinion Granting Sanctions (Nonfinal) But Not after Fees Quantified and Awarded (Final) — FRAP 4(a)(2), 4(a)(4)(B)(i) Do Not Save Appeal

Circuit Split as to Whether Daubert Applies at Class Certification — Supreme Court Has Granted Cert in Case Implicating This Issue and May Resolve It This Term

RICO — No PSLRA Bar to Tax Shelter Suit against Law Firm for Opinion Letters — Securities Only Incidental to the Fraud — 4 Letters over 5 Years (3 of Them within 2 Months) Satisfy Continuity

Daubert Safeguards “Not as Essential” in Bench Trial — Expert Testimony Based on Industry Experience That Does Not Rest on Scientific Principles Does Not Require Scientific Substantiation

Authentication of Website Evidence by Testimony of Downloading Witness That Printout Accurately Reflects Page at Time Printout Was Made

Contours of Commercial Activity Exception of the Foreign Sovereign Immunities Act

Spoliation — Adverse Inference at Bench Trial Does Not Preclude Verdict for Spoliator — Inference Is Permissive, Not Mandatory

Eighth Circuit Reserves on Question Whether Spoliation Sanctions Are Ever Appropriate in a Criminal Case

Official Government Website Evidence Is Admissible in New York State

Sanctions — Circuit Splits: (1) No Vicarious Liability under § 1927 — (2) No Bad Faith Required for § 1927 Sanctions

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

Archives

New York Office