Complex Lit Blog

Court May Award Injunctive Relief While Arbitration Is Pending If Contract Permits Recourse to Court — Circuit Split as to Whether Judicial Injunctive Relief Awardable under FAA Absent Contractual Provision Authorizing It

Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG's request for injunctive relief, before the arbitrator has determined whether Boring violated the employment agreement. The arbitration ag ...

Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG’s request for injunctive relief, before the arbitrator has determined…

Class Actions — Cy Pres Doctrine Applicable Only Where Plaintiffs Fully Compensated — Reasonable Approximation Test — Unlimited Judicial Discretion Inadvisable

In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group ("the Samsell plaintiffs"), are within a larger class of medical patient consumers in a case alleging fraud in overcharging for the medication Lupron. These plaintiffs, along with insurers and private he ...

In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group (“the Samsell plaintiffs”), are within a larger class of medical patient consumers in a case alleging fraud…

RICO — Allegedly Inflated Cost of Appraisal in Mortgage Transaction Does Not Constitute Concrete Financial Loss Absent Factual Allegations Demonstrating It Exceeded Market Price or Was Not Independent, as Billed

Gomez v. Wells Fargo Bank, N.A., 2012 U.S. App. LEXIS 7370 (8th Cir. April 12, 2012): Grant A. Gomez and Lanie L. Gomez (the Gomezes) sought to establish a nationwide class of thousands of borrowers who allegedly paid inflated appraisal fees in connection with real estate transactions financed by Wells Fargo Bank, N.A. (Wells Fargo). ** ...

Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability

Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545 (D. Minn. Dec. 19, 2011): As evidence, Basalite relies on printouts of Keystone's website dated 2006 and retrieved from the Internet Archive (or "Wayback Machine"); both patents were filed on November 7, 2008, so an anticipatory reference f ...

Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545 (D. Minn. Dec. 19, 2011): As evidence, Basalite relies on printouts of Keystone’s website dated 2006 and retrieved from the Internet Archive (or “Wayback Machine”);…

Disqualification: While Prior Representation of Adversary’s Predecessor in Interest May Warrant Disqualification, Representation of Assignor of Rights Does Not — Burden of Proving Specific Confidential Information Posses

My First Shades v. Baby Blanket Suncare, 2012 U.S. Dist. LEXIS 19881 (E.D.N.Y. Feb. 16, 2012): Plaintiffs My First Shades ("MFS") and Venetian Holdings, LLC ("Venetian") brought this action against defendants Baby Blanket Suncare and the Mercer Group, Ltd. ("Mercer"), claiming that defendants have committed, and are continuing to commit ...

My First Shades v. Baby Blanket Suncare, 2012 U.S. Dist. LEXIS 19881 (E.D.N.Y. Feb. 16, 2012): Plaintiffs My First Shades (“MFS”) and Venetian Holdings, LLC (“Venetian”) brought this action against defendants Baby Blanket Suncare and the Mercer Group, Ltd. (“Mercer”),…

Limits on Equitable Tolling — Exceptions to Client Responsibility for Lawyer Negligence — Gross Negligence vs. Negligence (Good Quote)

Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if "right" is not too strong a word in the area of equity — to equitable tolling. He must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue. Chave ...

Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if “right” is not too strong a word in the area of equity — to equitable tolling.…

Spoliation — Unsuccessful Applicant’s Emails Asking Why She Was Not Hired Insufficient to Trigger Duty to Preserve — Sixth Circuit Applies Residential Funding Standard — Destruction in Ordinary Course

Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman's ADEA claim stems from USPS's denial of Perryman's application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same position that she held at the South Euclid, Ohio Post Office. Perryman applied ...

Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman’s ADEA claim stems from USPS’s denial of Perryman’s application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same…

Settlement Negotiations Are Not Privileged — Circuit Split — Utility of Rule 26 — Heightened Standard for Discovery

In re MSTG, Inc., 2012 U.S. App. LEXIS 7092 (Fed. Cir. April 9, 2012): This [mandamus] petition arises out of an order of the United States District Court for the Northern District of Illinois compelling MSTG, Inc. ("MSTG") to produce documents related to license negotiation discussions between MSTG and six other companies, including pr ...

Where Testifying Expert Is Salaried Employee, Compensation Disclosure Requirement of Rule 26(a)(2)(B) Does Not Apply unless Salary Is Tied to or Dependent on Opinions — Full-Time Employee Status Alone Sufficient to Show Bias

Securities and Exchange Commission v. Nadel, , 2012 U.S. Dist. LEXIS 53173 (E.D.N.Y. April 16, 2012): Dr. Porter is an Assistant Professor of Finance at Iowa State University who is currently serving at the SEC's Division of Risk, Strategy and Financial Innovation pursuant to an Intergovernmental Personnel Act agreement awarded in June 2 ...

Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?

Oakley v. Verizon Commc’ns, Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012): Where predominance is lacking, a Court may certify sub-issues for class adjudication; in Nassau County [In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006),] the Second Circuit acknowledged a split in Circuit caselaw, but sided wi ...

Commercial Litigation and Arbitration

Court May Award Injunctive Relief While Arbitration Is Pending If Contract Permits Recourse to Court — Circuit Split as to Whether Judicial Injunctive Relief Awardable under FAA Absent Contractual Provision Authorizing It

Class Actions — Cy Pres Doctrine Applicable Only Where Plaintiffs Fully Compensated — Reasonable Approximation Test — Unlimited Judicial Discretion Inadvisable

RICO — Allegedly Inflated Cost of Appraisal in Mortgage Transaction Does Not Constitute Concrete Financial Loss Absent Factual Allegations Demonstrating It Exceeded Market Price or Was Not Independent, as Billed

Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability

Disqualification: While Prior Representation of Adversary’s Predecessor in Interest May Warrant Disqualification, Representation of Assignor of Rights Does Not — Burden of Proving Specific Confidential Information Posses

Limits on Equitable Tolling — Exceptions to Client Responsibility for Lawyer Negligence — Gross Negligence vs. Negligence (Good Quote)

Spoliation — Unsuccessful Applicant’s Emails Asking Why She Was Not Hired Insufficient to Trigger Duty to Preserve — Sixth Circuit Applies Residential Funding Standard — Destruction in Ordinary Course

Settlement Negotiations Are Not Privileged — Circuit Split — Utility of Rule 26 — Heightened Standard for Discovery

Where Testifying Expert Is Salaried Employee, Compensation Disclosure Requirement of Rule 26(a)(2)(B) Does Not Apply unless Salary Is Tied to or Dependent on Opinions — Full-Time Employee Status Alone Sufficient to Show Bias

Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?

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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