Complex Lit Blog

Securities — 10b-5 Liability for Breach of Contract — Shingle Theory of Broker-Dealer Liability

Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers ("RCM Customers") of Refco Capital Markets, Ltd. ("RCM"), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch's dismissal of their Section 10(b) securities fraud claims against former corporate officers of Ref ...

Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers (“RCM Customers”) of Refco Capital Markets, Ltd. (“RCM”), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch’s dismissal of their…

Arbitration: § 5 of FAA Authorizes Court to Name Substitute Arbitrator when Contractually-Designated One Is Unavailable and Not “Integral” — Circuit Split on Interpretation of § 5

Khan v. Dell, Inc., 2012 U.S. App. LEXIS 1167 (3d Cir. Jan. 20, 2012): This appeal involves a matter of first impression for this Circuit — whether Section 5 of the Federal Arbitration Act (FAA) requires the appointment of a substitute arbitrator when the arbitrator designated by the parties is unavailable.*** I. Factual Backgr ...

Award of Expert Witness Fees as Inherent Power Sanction Where Bad Faith Litigant’s Proffer Excluded — Inherent Power vs. 35 U.S.C. § 285

Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority "to impose sanctions in the form of reasonable expert fees in excess of what is provided for by statute." Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 549 F.3d 1381, 1391 (Fed. Cir. 2008). Use of this inherent a ...

Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority “to impose sanctions in the form of reasonable expert fees in excess of what is provided for by…

Denial of Pro Hac Vice Application Due to Frequency of Appearance — Circuit Split as to Whether Pro Hac Appearance Is a Right or a Privilege

Mateo v. Empire Gas Co., 2012 U.S. Dist. LEXIS 6398 (D. P.R. Jan. 19, 2012): Before the Court is pro hac vice attorneys Toby B. Fullmer and W. Douglas Matthews' show cause response (Docket # 97), requesting this court not to set aside their pro hac vice admissions in the case at bar. After a comprehensive analysis of the meaning and pur ...

Mateo v. Empire Gas Co., 2012 U.S. Dist. LEXIS 6398 (D. P.R. Jan. 19, 2012): Before the Court is pro hac vice attorneys Toby B. Fullmer and W. Douglas Matthews’ show cause response (Docket # 97), requesting this court not…

New Article Analyzing Recent Developments in the Law of Sanctions

A new article analyzing recent developments in federal sanctions law can be accessed here. ...

A new article analyzing recent developments in federal sanctions law can be accessed here.

Cost of Letter of Credit Required to Support Supersedeas Bond Not a Taxable Cost under FRAP. 39(e) Even Though Cost of Bond Is and Cost of LOC in Lieu of Bond Would Be — Circuit Split

Hynix Semiconductor Inc. v. Rambus, Inc., 2012 U.S. Dist. LEXIS 3552 (N.D. Cal. Jan. 11, 2012): The district court may tax "premiums paid for a supersedeas bond or other bond to preserve rights pending appeal." Fed. R. App. P. 39(e)(3). Hynix claims in excess of $8 million in premiums paid for the supersedeas bond it acquired, and in ex ...

Hynix Semiconductor Inc. v. Rambus, Inc., 2012 U.S. Dist. LEXIS 3552 (N.D. Cal. Jan. 11, 2012): The district court may tax “premiums paid for a supersedeas bond or other bond to preserve rights pending appeal.” Fed. R. App. P. 39(e)(3).…

Rule 11 Motion That Would Require Court to Decide Substance of Motion Subject to Bankruptcy Stay Is Properly Deferred until Stay Lifted

Wolgast v. Richards, 2012 U.S. Dist. LEXIS 5704 (E.D. Mich. Jan. 18, 2012): Plaintiff's argument presents an issue of first impression: May a debtor, after filing a Chapter 13 bankruptcy petition, move for Rule 11 sanctions in a pending case when the subject matter of the motion has been automatically stayed? Under the particular ci ...

Wolgast v. Richards, 2012 U.S. Dist. LEXIS 5704 (E.D. Mich. Jan. 18, 2012): Plaintiff’s argument presents an issue of first impression: May a debtor, after filing a Chapter 13 bankruptcy petition, move for Rule 11 sanctions in a pending case…

Uncertain Application of Rooker-Feldman to State Court Judgments Still on Appeal in State Court System — Circuit Split

TC Healthcare I, LLC v. Dupuis (In re Haven Eldercare, LLC), 2012 U.S. Dist. LEXIS 3190 (D. Conn. Jan. 10, 2012): Ms. Dupuis was employed by a nursing home operator, Haven Eldercare LLC ("Haven"), which filed for Chapter 11 bankruptcy protection in 2007. Before the bankruptcy, Ms. Dupuis and Haven entered into a tuition reimbursement con ...

TC Healthcare I, LLC v. Dupuis (In re Haven Eldercare, LLC), 2012 U.S. Dist. LEXIS 3190 (D. Conn. Jan. 10, 2012): Ms. Dupuis was employed by a nursing home operator, Haven Eldercare LLC (“Haven”), which filed for Chapter 11 bankruptcy…

Imprisonment for Civil Contempt for Failure to Pay Rule 11 Sanction — 4-Part Fourth Circuit Test for Dismissal Sanction — No Rule 11 Sanction for Isolated, Inadvertent Mistake

Young Again Prods., Inc. v. Ortega, 2011 U.S. App. LEXIS 25713 (4th Cir. Dec. 23, 2011): This appeal arises from the district court's entry of default judgment in the amount of $3,832,832 against John Acord and his mother, Marcella Ortega (collectively, the "Appellants"), pursuant to Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A ...

Young Again Prods., Inc. v. Ortega, 2011 U.S. App. LEXIS 25713 (4th Cir. Dec. 23, 2011): This appeal arises from the district court’s entry of default judgment in the amount of $3,832,832 against John Acord and his mother, Marcella Ortega…

Can’t Dismiss under 12(b)(6) on Grounds Motion Unopposed, Where Non-Opposition Due to Technical Error — Failure to Comply with Local Rules ≠ Dismissal with Prejudice Absent Contumacious or Repeated Failures — No Rule 11 Sanctions for Inaction

Webb v. Morella, 2012 U.S. App. LEXIS 433 (5th Cir. Jan. 9, 2012): The appellants, Belva and Faith Webb, filed this cause against Joseph Morella, their lawyer and a part-time city magistrate, asserting in their complaint a disorganized smattering of federal and state law tort claims against Morella. Morella moved for dismissal of the c ...

Commercial Litigation and Arbitration

Securities — 10b-5 Liability for Breach of Contract — Shingle Theory of Broker-Dealer Liability

Arbitration: § 5 of FAA Authorizes Court to Name Substitute Arbitrator when Contractually-Designated One Is Unavailable and Not “Integral” — Circuit Split on Interpretation of § 5

Award of Expert Witness Fees as Inherent Power Sanction Where Bad Faith Litigant’s Proffer Excluded — Inherent Power vs. 35 U.S.C. § 285

Denial of Pro Hac Vice Application Due to Frequency of Appearance — Circuit Split as to Whether Pro Hac Appearance Is a Right or a Privilege

New Article Analyzing Recent Developments in the Law of Sanctions

Cost of Letter of Credit Required to Support Supersedeas Bond Not a Taxable Cost under FRAP. 39(e) Even Though Cost of Bond Is and Cost of LOC in Lieu of Bond Would Be — Circuit Split

Rule 11 Motion That Would Require Court to Decide Substance of Motion Subject to Bankruptcy Stay Is Properly Deferred until Stay Lifted

Uncertain Application of Rooker-Feldman to State Court Judgments Still on Appeal in State Court System — Circuit Split

Imprisonment for Civil Contempt for Failure to Pay Rule 11 Sanction — 4-Part Fourth Circuit Test for Dismissal Sanction — No Rule 11 Sanction for Isolated, Inadvertent Mistake

Can’t Dismiss under 12(b)(6) on Grounds Motion Unopposed, Where Non-Opposition Due to Technical Error — Failure to Comply with Local Rules ≠ Dismissal with Prejudice Absent Contumacious or Repeated Failures — No Rule 11 Sanctions for Inaction

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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