Complex Lit Blog

Arbitration — Second Circuit Sets High Threshold to Overturn Award on Grounds of “Evident Partiality” — Adopts Fourth Circuit Standards — Non-Disclosure Rarely Sufficient

Scandinavian Reins. Co. v. St. Paul F&M Ins. Co., 2012 U.S. App. LEXIS 2082 (2d Cir. Feb. 3, 2012): The primary question presented on this appeal is whether the failure of two arbitrators to disclose their concurrent service as arbitrators in another, arguably similar, arbitration constitutes "evident partiality" within the meaning ...

RICO — Horizontal and Vertical Relatedness

United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): The substantive RICO provision under which the defendants were convicted makes it unlawful for "any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a ...

United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): The substantive RICO provision under which the defendants were convicted makes it unlawful for “any person employed by or associated with any enterprise . . .…

Standards for Deposing Opposing Counsel — Claim for Attorney’s Fees Does Not Open Door to Deposition

United States Liab. Ins. Co. v. Goldin Metals, Inc., 2012 U.S. Dist. LEXIS 4881 (S.D. Miss. Jan. 17, 2011): The Goldins are defendants in a related civil suit filed in the United States District Court for the Northern District of Georgia. *** The Goldins tendered defense of the NCI lawsuit to Plaintiff, United States Liability Insurance ...

Impact of Daubert at Class Certification — Conflicting Circuit Views

Third Circuit: “[The district court] need not turn class certification into a mini-trial.... We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence, and ...

Third Circuit: “[The district court] need not turn class certification into a mini-trial…. We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which…

Extraterritorial Reach of RICO — Is Test Location of Enterprise or of Pattern? — No Proximate Cause between Money Laundering Predicate and Pretextual Firing

Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño ... [f]irst ... contends that his claim fits within the scope of RICO's domestic application because it alleges conduct in the United States that is within RICO's "focus." See Morr ...

Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño … [f]irst … contends that his claim fits within the scope of RICO’s…

Inherent Power Sanction Imposed on Attorney for Failure to Monitor ECF and Missing a Hearing That Was Noticed Only Electronically and Just Two Days before the Hearing Date

United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney ... was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing for his client, a criminal defendant. We affirm the issuance of the sanction, but reduce the ...

United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney … was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing…

Class Actions — Rule 23(c)(1)(B) Requires a Readily Discernible, Clear and Precise (1) Statement of the Parameters Defining the Class and (2) Complete List of Claims, Issues or Defenses

Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court's certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the district court judge's certification order complied with Rule 23(c)(1)(B) and (2) whether the two certif ...

Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court’s certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the…

Cunningham Dictates that Inherent Power Sanctions, Like Discovery Sanctions, Are Not Appealable on Interlocutory Basis under Collateral Order Doctrine

Douglas v. Merck & Co., 2012 U.S. App. LEXIS 1288 (2d Cir. Jan. 23, 2012): Attorney Gary Douglas, counsel to plaintiff Shirley Boles during the trial of her products liability action against defendant Merck & Co., Inc. ("Merck"), appeals the district court's October 4, 2010 order imposing on him a $2,500 sanction for improperly suggestin ...

May Court Grant Rule 60(b) Relief Sua Sponte? Circuit Split

Reich v. Hallet (In re Hallet), 2011 Bankr. LEXIS 4992 (Bankr. D. Mass. Dec. 19, 2011): Pursuant to Fed. R. Civ. P. 60(b), made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, i ...

RICO: Owners of Free Floating Vessels Not Subject to RICO Liability via Outer Continental Shelf Lands Act’s Provisions Extending US Law to Seabed and Permanently or Temporarily Attached Installations

Brown v. Offshore Specialty Fabricators, 663 F.3d 759 (5th Cir. 2011): This appeal involves a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs allege violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) an ...

Commercial Litigation and Arbitration

Arbitration — Second Circuit Sets High Threshold to Overturn Award on Grounds of “Evident Partiality” — Adopts Fourth Circuit Standards — Non-Disclosure Rarely Sufficient

RICO — Horizontal and Vertical Relatedness

Standards for Deposing Opposing Counsel — Claim for Attorney’s Fees Does Not Open Door to Deposition

Impact of Daubert at Class Certification — Conflicting Circuit Views

Extraterritorial Reach of RICO — Is Test Location of Enterprise or of Pattern? — No Proximate Cause between Money Laundering Predicate and Pretextual Firing

Inherent Power Sanction Imposed on Attorney for Failure to Monitor ECF and Missing a Hearing That Was Noticed Only Electronically and Just Two Days before the Hearing Date

Class Actions — Rule 23(c)(1)(B) Requires a Readily Discernible, Clear and Precise (1) Statement of the Parameters Defining the Class and (2) Complete List of Claims, Issues or Defenses

Cunningham Dictates that Inherent Power Sanctions, Like Discovery Sanctions, Are Not Appealable on Interlocutory Basis under Collateral Order Doctrine

May Court Grant Rule 60(b) Relief Sua Sponte? Circuit Split

RICO: Owners of Free Floating Vessels Not Subject to RICO Liability via Outer Continental Shelf Lands Act’s Provisions Extending US Law to Seabed and Permanently or Temporarily Attached Installations

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)

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