Complex Lit Blog

Chevron vs. Skidmore Deference

From Taproot Administrative Servs. v. Comm’r of Internal Revenue, 133 T.C. 202, 2009 U.S. Tax Ct. LEXIS 29, 133 T.C. No. 9 (U.S. Tax Court Sept. 29, 2009): In United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), the Supreme Court recognized that there are various types of agency pronouncements tha ...

RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...

Third Circuit Reserves Decision as to Whether Rule 11 Sanctions Imposed after Final Judgment Must Be Vacated under Its Supervisory Rule

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): [Footnote 16.] Pepper Hamilton also argues that, because the District Court imposed sanctions after it had already issued a final judgment, the sanctions must be reversed in light of the supervisory rule we ...

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): [Footnote 16.] Pepper Hamilton also argues that, because the District Court imposed sanctions after it had already issued…

Credit Default Swap on Home Mortgage Purchased by Mortgagee Does Not Inure to the Benefit of Mortgagor or Relieve Mortgagor’s Debt

From Dumont v. HSBC Mortgage Corp., USA, 2010 U.S. Dist. LEXIS 77805 (D. Ariz. July 30, 2010): In their fourth claim for relief, Plaintiffs' allege that HSBC or another heretofore unknown party may have purchased or collected proceeds available under one or more credit-default swaps of which Plaintiffs' mortgage might have been a part, a ...

From Dumont v. HSBC Mortgage Corp., USA, 2010 U.S. Dist. LEXIS 77805 (D. Ariz. July 30, 2010): In their fourth claim for relief, Plaintiffs’ allege that HSBC or another heretofore unknown party may have purchased or collected proceeds available under…

Rule 37, Default/Dismissal & Contempt Sanctions in the Second Circuit — Inherent Power Defers to Applicable Rule — No Harm, No Foul Rejected

From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that "[s]everal factors may be useful in evaluating a district court's exercise of discretion" to impose sanctions pursuant to this rule [Fed. R. Ci ...

From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that “[s]everal factors may be useful in evaluating a…

Tenth Circuit Requires Subjective Bad Faith for Inherent Power Sanctions but Applies Objective Test to Determine Vexatiousness under § 1927

From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court's order summarizes some errant conduct on the part of defendants. However, it lacks a finding of "subjective wrongdoing . . . required to support a fee award" under the federal courts' inherent power. *** The cases relied upon by the dis ...

From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court’s order summarizes some errant conduct on the part of defendants. However, it lacks a finding of “subjective wrongdoing . . . required to support…

Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant... ...

Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court's factual findings, such findings are reviewed for clear error. Fed. R. Civ. P. 52(a)(6). A district court's finding of fact is clearly erroneous ...

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court’s factual findings, such findings are reviewed for clear…

The Law of the Case Doctrine

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): "'As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Indus. Operati ...

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): “‘As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should…

Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the destruction of emails and TISH reports. They request an inference that "the evidence destroyed was unfav ...

Commercial Litigation and Arbitration

Chevron vs. Skidmore Deference

RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

Third Circuit Reserves Decision as to Whether Rule 11 Sanctions Imposed after Final Judgment Must Be Vacated under Its Supervisory Rule

Credit Default Swap on Home Mortgage Purchased by Mortgagee Does Not Inure to the Benefit of Mortgagor or Relieve Mortgagor’s Debt

Rule 37, Default/Dismissal & Contempt Sanctions in the Second Circuit — Inherent Power Defers to Applicable Rule — No Harm, No Foul Rejected

Tenth Circuit Requires Subjective Bad Faith for Inherent Power Sanctions but Applies Objective Test to Determine Vexatiousness under § 1927

Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

The Law of the Case Doctrine

Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

Recent Posts

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)

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

Archives

New York Office