Complex Lit Blog

Order Disqualifying Counsel Reviewable by Mandamus — Contractual Waiver of Conflict Enforceable

From In re Shared Memory Graphics LLC, 2011 U.S. App. LEXIS 19414 (Fed. Cir. Sept. 22, 2011): This petition arises out of SMG's patent infringement suit against Nintendo, Apple, Inc., Samsung Electronics Co., and Sony Corporation of America. SMG's claims against Nintendo--the only party that sought disqualification here--involve the "H ...

From In re Shared Memory Graphics LLC, 2011 U.S. App. LEXIS 19414 (Fed. Cir. Sept. 22, 2011): This petition arises out of SMG’s patent infringement suit against Nintendo, Apple, Inc., Samsung Electronics Co., and Sony Corporation of America. SMG’s claims…

Is District Court Automatically Divested of Jurisdiction when Party Appeals Order Denying Motion to Compel Arbitration? Circuit Split

Tillman v. Macy’s Inc., 2012 U.S. Dist. LEXIS 510 (E.D. Mich. Jan. 4, 2012): "Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split." Weingarten Realty Investors v. Miller, 661 F.3d 904, 907 (5th Cir. 2011). ...

Tillman v. Macy’s Inc., 2012 U.S. Dist. LEXIS 510 (E.D. Mich. Jan. 4, 2012): “Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject…

Outside of RICO and Clayton Act, Statutory Phrase “By Reason Of” Generally Denotes But-For, Not Proximate, Causation

UMG Recordings, Inc.v. Shelter Capital Partners LLC, 2011 U.S. App. LEXIS 25168 (9th Cir. Dec. 20, 2011): Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one of the world's largest recorded music and music publishing companies, and includes r ...

In Ruling on Motion to Amend after Scheduling Order Deadline, Court Need Not Consider Lack of Prejudice to Adversary — Only Diligence Must Be Considered

Kodak Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 U.S. Dist. LEXIS 148853 (W.D.N.Y. Dec. 28, 2011): On June 26, 2009, [Magistrate] Judge Payson entered a stipulated scheduling order, setting the deadline to file any motions to amend the pleadings as July 31, 2009. *** On September 20, 2010, fourteen months ...

Disqualification — May a Party Who Is Not a Current or Former Client Move to Disqualify on Conflict-of-Interest Grounds? Circuit Split

IMCO, LLC v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011): A complaining party who files a motion to disqualify an attorney must first have standing to do so. Blue Water Sunset, LLC v. Markowitz, 195 Cal. App. 4th 477, 486 (2011). The circuits are split on the issue of whether an attorney can be disqualified on the g ...

Injunctions — Circuit Split as to Continuing Vitality of Sliding Scale Approach to Injunctive Relief

United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: "(1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injuncti ...

United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: “(1) the plaintiff has a substantial likelihood of success on the merits;…

The 5 Most Important Developments in Federal Civil Practice in 2011

1. Class Actions: The Supreme Court's decision in Wal-Mart and its ramifications for (a) commonality determinations and (b) the application of Daubert at class certification (on which there is already a Circuit split). 2. Evidence: The restyled Federal Rules of Evidence, particularly Rule 101(b) (Definitions) and its impact on the self- ...

1. Class Actions: The Supreme Court’s decision in Wal-Mart and its ramifications for (a) commonality determinations and (b) the application of Daubert at class certification (on which there is already a Circuit split). 2. Evidence: The restyled Federal Rules of…

Arbitration — Res Judicata Is for Arbitrator to Decide, Waiver by Litigation for Court — Abandonment of Issue on Appeal by Failing to Brief It

Grigsby & Assocs., Inc. v. M Secs. Inv., 2011 U.S. App. LEXIS 25217 (11th Cir. Dec. 20, 2011): This case is about whether the district court should have permitted a dispute to be arbitrated. Plaintiffs, Grigsby & Associates, Inc., argue that the district court should have enjoined the arbitration proceedings, in part because Defendants, ...

Inherent Power — Bad Faith of Counsel in Flagrantly Violating In Limine Order Attributed to Client — Exclusion of Expert Testimony as Sanction Upheld

O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 2011 U.S. App. LEXIS 23125 (Fed. Cir. Nov. 18, 2011) (Background: The defense violated an in limine order that it not refer to the fact that the plaintiff was headquartered in the Cayman Islands. On voir dire, defense counsel asked: “Now, are there any of you who have a problem with a compa ...

Sarbanes-Oxley’s Addition of 18 U.S.C. § 1513(e) as a Predicate Authorizes RICO Claim for Firing as a Result of Whistleblowing Where Retaliation Linked to Racketeering Activity — Offering Raise + Confi + Release Suffices

DeGuelle v. Camilli, 2011 U.S. App. LEXIS 24868 (7th Cir. Dec. 15, 2011): Michael J. DeGuelle, a tax employee of S.C. Johnson & Son, Inc., was terminated after reporting an alleged tax fraud scheme to the company and federal law enforcement agencies. Following his termination, DeGuelle filed suit asserting two civil claims under the Ra ...

Commercial Litigation and Arbitration

Order Disqualifying Counsel Reviewable by Mandamus — Contractual Waiver of Conflict Enforceable

Is District Court Automatically Divested of Jurisdiction when Party Appeals Order Denying Motion to Compel Arbitration? Circuit Split

Outside of RICO and Clayton Act, Statutory Phrase “By Reason Of” Generally Denotes But-For, Not Proximate, Causation

In Ruling on Motion to Amend after Scheduling Order Deadline, Court Need Not Consider Lack of Prejudice to Adversary — Only Diligence Must Be Considered

Disqualification — May a Party Who Is Not a Current or Former Client Move to Disqualify on Conflict-of-Interest Grounds? Circuit Split

Injunctions — Circuit Split as to Continuing Vitality of Sliding Scale Approach to Injunctive Relief

The 5 Most Important Developments in Federal Civil Practice in 2011

Arbitration — Res Judicata Is for Arbitrator to Decide, Waiver by Litigation for Court — Abandonment of Issue on Appeal by Failing to Brief It

Inherent Power — Bad Faith of Counsel in Flagrantly Violating In Limine Order Attributed to Client — Exclusion of Expert Testimony as Sanction Upheld

Sarbanes-Oxley’s Addition of 18 U.S.C. § 1513(e) as a Predicate Authorizes RICO Claim for Firing as a Result of Whistleblowing Where Retaliation Linked to Racketeering Activity — Offering Raise + Confi + Release Suffices

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