Complex Lit Blog

Sanctions — Sixth Circuit Issues Directive Requiring Appellants and Their Counsel to Address Adverse Precedent and Advise the Court If They Are Arguing for a Change in the Law, or Face Sanctions

Waeschle v. Dragovic, 2012 U.S. App. LEXIS 14501 (6th Cir. July 16, 2012): B. Sanctions Following Waeschle's appeal to this Court, Defendants filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912 and 1927, arguing that the appeal is frivolous. Section 1912 provides that, where ...

Waeschle v. Dragovic, 2012 U.S. App. LEXIS 14501 (6th Cir. July 16, 2012): B. Sanctions Following Waeschle’s appeal to this Court, Defendants filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912 and…

Scope of Subject Matter Waiver of Privilege, If Any, Resulting from Intentional Prelitigation Disclosure of Privileged Memo Is Governed by the Same Fairness Considerations as in Rule 502(a) — Undecided Whether 502(a) Applies Prelitigation

Wi-Lan, Inc. v. Kilpatrick Townsend & Stockton LLP, 2012 U.S. App. LEXIS 14432 (Fed. Cir. July 13, 2012): The law firm of Kilpatrick Townsend & Stockton LLP ("Kilpatrick Townsend") appeals contempt sanctions entered in connection with a subpoena served on it in the Northern District of California. Wi-LAN, Inc. v. LG Elecs., Inc ...

Wi-Lan, Inc. v. Kilpatrick Townsend & Stockton LLP, 2012 U.S. App. LEXIS 14432 (Fed. Cir. July 13, 2012): The law firm of Kilpatrick Townsend & Stockton LLP (“Kilpatrick Townsend”) appeals contempt sanctions entered in connection with a subpoena served on…

Spoliation — Second Circuit Limits Pension Committee — Holds That Failure to Issue Litigation Hold Despite Notice of a Claim Does Not Per Se Constitute Gross Negligence — Totality of Circumstances Test

Chin v. Port Auth. of NY & NJ, 2012 WL 2760776 (2d Cir. July 10, 2012): Plaintiffs-appellees, eleven Asian Americans currently or formerly employed as police officers by the Port Authority of New York and New Jersey (“Port Authority”), sued the Port Authority under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ...

History of Prevailing Party Attorneys’ Fees (US vs. UK) in a Few Sentences — Good Quotes: (1) District Court Doesn’t Address All Factors; (2) Sanctions: Absence of Dismissal Motion Undercuts Claim Case Was Frivolous from Outset

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): It is true that some jurisdictions routinely award fees to the prevailing party. Footnote 1. In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967), the Supreme Court discussed one such example:

§ 1927 Sanctions Properly Denied Because Defense Counsel’s Time Records Did Not Permit Him to Identify Time Specifically Spent Defending 10 Meritless Claims That Were Dismissed on the Eve of Trial

Jackson v. Diversified Collection Servs., Inc., 2012 U.S. App. LEXIS 12392 (10th Cir. June 19, 2012): DCS sought fees against Mr. Jackson's attorney, claiming that he acted in bad faith dismissing numerous claims at the start of trial. The district court ruled that a sanction under § 1927 for multiplication of proceedings was warranted ...

Jackson v. Diversified Collection Servs., Inc., 2012 U.S. App. LEXIS 12392 (10th Cir. June 19, 2012): DCS sought fees against Mr. Jackson’s attorney, claiming that he acted in bad faith dismissing numerous claims at the start of trial. The district…

Spoliation — Destruction of Disposable Breath Test Device That Does Not Retain Results Is Not Sanctionable — Manufacturer’s Statement That It “Is Not Intended To Legally Determine Blood Alcohol” Goes to Weight — Good Quote on Daubert

Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court's evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line ("NCL"). Rutledge was aboard NCL's Norwegian Sun cruise ship on March 3, 2007, when she was injured in a fall as she ...

Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court’s evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line (“NCL”). Rutledge was aboard NCL’s Norwegian…

Internet Evidence Not Offered for the Truth Sufficiently Authenticated on Summary Judgment by Attorney’s Affidavit

Lebewohl v. Heart Attack Grill, LLC, 2012 U.S. Dist. LEXIS 93945 (S.D.N.Y. July 6, 2012): The parties to this declaratory judgment action are restaurants that use provocative names to market their extravagantly caloric food. Defendants are a chain of theme restaurants called the Heart Attack Grill and its owners (together, "HAG"). HAG's ...

Discovery under 28 U.S.C. § 1782 — Ex Parte / OSC Approach Satisfies Due Process — Deferential Appellate Review: “Not Outside the Range of Permissible Decisions”

Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak ("Gushlak") and Yelena Furman ("Furman") appeal from orders of the district court granting Debbie Gushlak's petition for an order of judicial assistance, under 28 U.S.C. § 1782, to obtain discovery in connection with a foreign lega ...

Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak (“Gushlak”) and Yelena Furman (“Furman”) appeal from orders of the district court granting Debbie Gushlak’s petition for an order of judicial assistance, under 28…

Rule 37(c)(1) Sanctions — Factors for Determining Whether Failure Was Substantially Justified or Harmless

ACE Am. Ins. Co. v. McDonald’s Corp., 2012 U.S. Dist. LEXIS 89726 (D. Md. June 28, 2012): Although Ace American's Rule 26 (a)(2) disclosures were untimely and in non-compliance, and arguably rendered McDonald's unable to "comply with its own Rule 26(a)(2) disclosure requirements," *** the Court denies McDonald's Motion to Strike Ace A ...

ACE Am. Ins. Co. v. McDonald’s Corp., 2012 U.S. Dist. LEXIS 89726 (D. Md. June 28, 2012): Although Ace American’s Rule 26 (a)(2) disclosures were untimely and in non-compliance, and arguably rendered McDonald’s unable to “comply with its own Rule…

RICO — Criminally False Attestations of HR Personnel Disguising Hiring of Illegal Aliens Not Proximate Cause of Depressed Wages for Other Employees

Walters v. McMahen, 2012 U.S. App. LEXIS 13682 (4th Cir. July 5, 2012): In this case, a group of hourly-wage employees of Perdue Farms, Inc. (Perdue), a major poultry processing company, filed a civil conspiracy action under 18 U.S.C. § 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq ...

Commercial Litigation and Arbitration

Sanctions — Sixth Circuit Issues Directive Requiring Appellants and Their Counsel to Address Adverse Precedent and Advise the Court If They Are Arguing for a Change in the Law, or Face Sanctions

Scope of Subject Matter Waiver of Privilege, If Any, Resulting from Intentional Prelitigation Disclosure of Privileged Memo Is Governed by the Same Fairness Considerations as in Rule 502(a) — Undecided Whether 502(a) Applies Prelitigation

Spoliation — Second Circuit Limits Pension Committee — Holds That Failure to Issue Litigation Hold Despite Notice of a Claim Does Not Per Se Constitute Gross Negligence — Totality of Circumstances Test

History of Prevailing Party Attorneys’ Fees (US vs. UK) in a Few Sentences — Good Quotes: (1) District Court Doesn’t Address All Factors; (2) Sanctions: Absence of Dismissal Motion Undercuts Claim Case Was Frivolous from Outset

§ 1927 Sanctions Properly Denied Because Defense Counsel’s Time Records Did Not Permit Him to Identify Time Specifically Spent Defending 10 Meritless Claims That Were Dismissed on the Eve of Trial

Spoliation — Destruction of Disposable Breath Test Device That Does Not Retain Results Is Not Sanctionable — Manufacturer’s Statement That It “Is Not Intended To Legally Determine Blood Alcohol” Goes to Weight — Good Quote on Daubert

Internet Evidence Not Offered for the Truth Sufficiently Authenticated on Summary Judgment by Attorney’s Affidavit

Discovery under 28 U.S.C. § 1782 — Ex Parte / OSC Approach Satisfies Due Process — Deferential Appellate Review: “Not Outside the Range of Permissible Decisions”

Rule 37(c)(1) Sanctions — Factors for Determining Whether Failure Was Substantially Justified or Harmless

RICO — Criminally False Attestations of HR Personnel Disguising Hiring of Illegal Aliens Not Proximate Cause of Depressed Wages for Other Employees

Recent Posts

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)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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

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