Complex Lit Blog

RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity

From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured "by reason of" the alleged racketeering activity, 18 U.S.C. § 1964(c), that is, that the defendant's RICO violation proximately caused plaintiffs' injuries.... In the RICO co ...

From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured “by reason of” the alleged racketeering activity, 18 U.S.C. § 1964(c),…

Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

From Coalition for a Sustainable Delta v. Koch, 2009 U.S. Dist. LEXIS 100728 (E.D. Cal. Oct. 15, 2009): Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs [Rule 34 requests for production] constitutes per se waiver, and (2) that Defendants' subseq ...

Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split

From Sherwood v. Marquette Transp. Co., 2009 U.S. App. LEXIS 25581 (7th Cir. 2009): This leads Bluegrass Marine to invoke the collateral-order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). The last decision treating the denial of a stay as an appealable collateral or ...

Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)

From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants' counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs.... On April 8, 2009, Mr. Muhs responded to Mr. Klingbeil via email, also directing his correspondence (with the underlying March 31, ...

From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants’ counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs…. On April 8, 2009, Mr.…

Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit

From In re Pharma. Indus. Average Wholesale Price Litig. 2009 U.S. App. LEXIS 25536 (1st Cir. Nov. 19, 2009): This circuit has not had occasion to consider whether settlement agreements in class actions may establish cy pres funds. Other circuits have approved agreements that provide for cy pres funds, particularly those negotiated at ar ...

Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed

From Graham v. Barriger, 2009 U.S. Dist. LEXIS 107967 (S.D.N.Y. Nov. 17, 2009) (securities laws claims dismissed; breach of contract and common law fraud claims remained): [In] Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003), ... the Second Circuit held that the district court abused its discretion by exercisin ...

RICO — Nationwide Jurisdiction — National vs. Local Contacts — Circuit Split

From Unencumbered Assets Trust v. JP Morgan Chase Bank, 2009 U.S. Dist. LEXIS 44174 (S.D. Ohio May 11, 2009): The UAT contends that when a federal RICO claim is asserted, courts evaluate personal jurisdiction based on nationwide contacts. The RICO statute provides for nationwide service of process, 18 U.S.C. § 1965, and some courts ha ...

Expert Report Consisting of Nothing More Than Conclusory Statements Supporting a Party’s Position Rejected — “Bad Faith” Insurance Expert Testimony Inadmissible (Caselaw Split)

From Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., 2009 U.S. Dist. LEXIS 105927 (E.D. La. July 31, 2009): [D]efendant challenges Mr. Knowe's testimony on the grounds that plaintiffs seek to introduce him as a "bad faith expert," which a number courts have excluded. This Court, in Marketfare Annunciation, LLC v. United Fire ...

From Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., 2009 U.S. Dist. LEXIS 105927 (E.D. La. July 31, 2009): [D]efendant challenges Mr. Knowe’s testimony on the grounds that plaintiffs seek to introduce him as a “bad faith expert,”…

Judicial Estoppel Inappropriate Where Party Changes Position Due to Intervening Change in Law

From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that "if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive trust for the benefit of the Plan, the Plan will forever lose the ability to recover its prop ...

From Longaberger Co. v. Kolt, 2009 U.S. App. LEXIS 25047 (6th Cir. Nov. 16, 2009): In its motion for injunctive relief, Longaberger stated that “if Kolt disburses or otherwise commingles or uses the settlement funds which he holds in constructive…

Rule 45 — Party May Object to Subpoena Served on Third Party Seeking Documents to Which Party Has Standing to Invoke Privilege or Personal Interest

From Iron Workers’ Local 25 Pension Fund v. Watson Wyatt & Co., 2009 U.S. Dist. LEXIS 18335 (E.D. Mich. Mar. 10, 2009): Although a party to a lawsuit typically has no standing to object to a subpoena directed at a non-party, standing exists when the party claims a privilege or other personal interest in regard to the requested docum ...

Commercial Litigation and Arbitration

RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity

Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split

Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)

Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit

Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed

RICO — Nationwide Jurisdiction — National vs. Local Contacts — Circuit Split

Expert Report Consisting of Nothing More Than Conclusory Statements Supporting a Party’s Position Rejected — “Bad Faith” Insurance Expert Testimony Inadmissible (Caselaw Split)

Judicial Estoppel Inappropriate Where Party Changes Position Due to Intervening Change in Law

Rule 45 — Party May Object to Subpoena Served on Third Party Seeking Documents to Which Party Has Standing to Invoke Privilege or Personal Interest

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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