Complex Lit Blog

Extraterritorial Application of U.S. Securities Laws — Conduct Test in Second Circuit — Rule 12(b)(1) Standards

From Terra Secs. v. Citigroup, Inc., 2010 U.S. Dist. LEXIS 14378 (S.D.N.Y. Feb. 16, 2010): The inquiry on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) concerns whether the district court has the statutory or constitutional power to adjudicate the case. See Makarova, 201 F.3d at 113. "[J]urisdict ...

Clergy-Communicant Privilege Not Waived by Presence of Third Parties

From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege "protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality." In re Grand Jury Investigation, 918 F.2d 374, 384 (1990). "The p ...

From WebXchange Inc. v. Dell Inc., 2010 U.S. Dist. LEXIS 12954 (D. Del. Feb. 16, 2010): The clergy-communicant privilege “protect[s] communications made (1) to a clergyperson (2) in his or her spiritual capacity (3) with a reasonable expectation of confidentiality.”…

Summaries & Fed.R.Evid. 1006 — As Long as Underlying Documents Are Made Available to Opponent, Database Containing Them Need Not Be

From United States v. Lewis, 2010 U.S. App. LEXIS 2897 (10th Cir. Feb. 12, 2010): Using the bank records, the government created a computer database detailing the activity in some 170 accounts. The database of checks, wire transfers, deposits, and the like contained over 15,500 items. By making queries of the database, government agents ...

Witness’s Review of Privileged Notes of Conversations Before Deposition Waived Privilege — Production Ordered Under Fed.R.Evid. 612(2)

From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSC ...

From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010): At plaintiff’s deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and…

12(b)(6) Motions — Limitations Defense Properly Considered on Dismissal Motion — Documents the Court May Consider

From Alford v. Wachovia Bank/World Sav. Bank, 2010 U.S. Dist. LEXIS 14060 (E.D. Cal. Jan. 26, 2010): *** [A] limitations defense may be raised by a F.R.Civ.P. 12(b)(6) motion to dismiss. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. ...

Denial of Sanctions Affirmed Where Party “Substantially Complied” with Discovery Orders

From Guimaraes v. NORS, 2010 U.S. App. LEXIS 2953 (11th Cir. Feb. 16, 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld the denial of sanctions where the non-moving party had not timely p ...

Measuring Veracity for Securities Fraud Purposes

From Operating Local 649 Annuity Trust fund v. Smith Barney Fund Mgmt., LLC, 2010 U.S. App. LEXIS 2954 (2d Cir. Feb. 16, 2010): The veracity of a statement or omission is measured not by its literal truth, but by its ability to accurately inform rather than mislead prospective buyers. Cf. Greenapple v. Detroit Edison Co., 6 ...

SEC vs. Private 10b-5 Actions — Differences in Elements — Does the PSLRA Inferentially Demonstrate That Recklessness Is Enough?

From Gebhart v. SEC, 2010 U.S. App. LEXIS 3043 (9th Cir. Feb. 17, 2010): [Footnote] 8 The elements of a section 10(b) or Rule 10b-5 claim vary depending on the identities of the parties and the nature of the relief sought. In a private securities fraud action, the plaintiff generally must prove five elements: (1) a ...

Tripartite Arbitration Panel’s Ex Parte Session with Expert Did Not Violate Federal Arbitration Act or Vitiate Award — Test Is Fundamental Fairness — Prejudice Required for Violation of § 10(a)(3) of FAA

From U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167 (9th Cir. 2010): We are asked to determine whether an arbitration panel violated the Federal Arbitration Act (FAA), 9 U.S.C. §§ 2-16. The process employed by the arbitration panel, which included an ex parte meeting with panel-retained workers' compensation experts, wa ...

RICO § 1962(a) and (b) Requirements

From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be "distinct from the injuries resulting from predicate acts" themselves. Conclusory allegations that defendants used or invested income received from plaintiffs are insufficient ...

From Carmona v. Spanish Broad. Sys., 2009 U.S. Dist. LEXIS 26479 (S.D.N.Y. Mar. 30, 2009): To succeed under 1962(a), the alleged use or investment injury must be “distinct from the injuries resulting from predicate acts” themselves. Conclusory allegations that defendants…

Commercial Litigation and Arbitration

Extraterritorial Application of U.S. Securities Laws — Conduct Test in Second Circuit — Rule 12(b)(1) Standards

Clergy-Communicant Privilege Not Waived by Presence of Third Parties

Summaries & Fed.R.Evid. 1006 — As Long as Underlying Documents Are Made Available to Opponent, Database Containing Them Need Not Be

Witness’s Review of Privileged Notes of Conversations Before Deposition Waived Privilege — Production Ordered Under Fed.R.Evid. 612(2)

12(b)(6) Motions — Limitations Defense Properly Considered on Dismissal Motion — Documents the Court May Consider

Denial of Sanctions Affirmed Where Party “Substantially Complied” with Discovery Orders

Measuring Veracity for Securities Fraud Purposes

SEC vs. Private 10b-5 Actions — Differences in Elements — Does the PSLRA Inferentially Demonstrate That Recklessness Is Enough?

Tripartite Arbitration Panel’s Ex Parte Session with Expert Did Not Violate Federal Arbitration Act or Vitiate Award — Test Is Fundamental Fairness — Prejudice Required for Violation of § 10(a)(3) of FAA

RICO § 1962(a) and (b) Requirements

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

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