Complex Lit Blog

Arbitration and Appraisal — Court Enforces Mandatory Appraisal Clause Even Though No Appraisers Exist Who Possess the Contractual Qualifications

From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case -- whether a clause in a lease agreement, which clause requires the parties to the lease to settle a rent dispute through appraisal, is rendered void by the unavailability of appraisers with the exact q ...

From Singleton v. Grade A Market, Inc., 2009 U.S. Dist. LEXIS 31026 (D. Conn. April 13, 2009): The precise question presented in this case — whether a clause in a lease agreement, which clause requires the parties to the lease…

Spoliation of One Defendant’s Evidence by Consultant Retained by Joint Counsel Exposes All Jointly-Represented Co-Defendants to Sanctions

In United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 (N.D. Cal. Mar. 29, 2009), the plaintiff claimed that certain evidence in the possession of one defendant was spoliated by a consultant and that the spoliation was attributable to that defendant’s counsel. The same counsel also jointly represented two other defendants (the corporate parent and g ...

E.D.N.Y. Denies Bear Stearns Prosecutors an Injunction Blocking a FINRA Arbitration that Will Disclose Relevant Evidence

From United States v. Fin. Indus. Reg. Auth., 2009 U.S. Dist. LEXIS 30485 (E.D.N.Y. April 9, 2009): A district court unquestionably has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin proceedings that threaten to interfere with its jurisdiction over a pending criminal case. *** Determining whether to enjoin a ...

Federal Arbitration Act Precludes Parties from Contracting under State Law for Broader Judicial Review Once Motion to Vacate Is Removed, Provided FAA Applies

From McQueen-Starling v. UnitedHealth Group, Inc., 2009 U.S. Dist. LEXIS 23266 (S.D.N.Y. Mar. 20, 2009): In Hall Street Assocs., LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), the Supreme Court addressed the question of whether parties could supplement by contract the statutory grounds for vacating an arbitration award provided in th ...

CAFA — Third Circuit Defines Local Controversy Elements — Jurisdiction Assessed Based on Defendants Remaining in Action — Plaintiff Bears Burden of Proving Lack of Federal Jurisdiction

From Kaufman v. Allstate N.J. Ins. Co., 2009 U.S. App. LEXIS 6429 (3d Cir. Mar. 26, 2009): The Class Action Fairness Act of 2005 (CAFA) confers jurisdiction on federal courts over certain class actions in which any defendant and any class member are citizens of different states. 28 U.S.C. § 1332(d)(2). CAFA further enables any defendan ...

RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity

From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that "mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to e ...

From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009): The Supreme Court teaches that “mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to…

Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings

From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009): Hawaii Rule of Professional Conduct 3.7(a) provides: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an unconteste ...

Sanctions — Misconduct of Counsel Should Not Be Visited on Client Absent Evidence of Client Participation

From In re Central European Indus. Dev. Co., 2009 Bankr. LEXIS 639 (N.D. Cal. Bankr. Jan. 13, 2009): [I]n the context of [Bankruptcy] Rule 9011 sanctions, courts generally disfavor sanctioning a party for its counsel's misconduct unless the party itself is somehow implicated. Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, ...

Experts — Guilty Knowledge and Criminal Intent Are Matters of Fact, Not Law, and Proper Topics of Expert Testimony

From United States v. Johnston, , 2009 U.S. App. LEXIS 6981 (11th Cir. Mar. 30, 2009): We also reject Johnston's argument that the experts improperly testified to legal conclusions. Although experts may not testify to legal conclusions, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it ...

From United States v. Johnston, , 2009 U.S. App. LEXIS 6981 (11th Cir. Mar. 30, 2009): We also reject Johnston’s argument that the experts improperly testified to legal conclusions. Although experts may not testify to legal conclusions, “testimony in the…

Email Evidence — Attachments to Authenticated Emails Are Themselves Authenticated

From Madison Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist. LEXIS 27406 (S.D. Tex. Mar. 31, 2009): Plaintiffs also object to documents attached to Maes' executed declaration filed on June 30, 2008. Specifically, Plaintiffs object to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and ...

From Madison Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist. LEXIS 27406 (S.D. Tex. Mar. 31, 2009): Plaintiffs also object to documents attached to Maes’ executed declaration filed on June 30, 2008. Specifically, Plaintiffs object to an email from…

Commercial Litigation and Arbitration

Arbitration and Appraisal — Court Enforces Mandatory Appraisal Clause Even Though No Appraisers Exist Who Possess the Contractual Qualifications

Spoliation of One Defendant’s Evidence by Consultant Retained by Joint Counsel Exposes All Jointly-Represented Co-Defendants to Sanctions

E.D.N.Y. Denies Bear Stearns Prosecutors an Injunction Blocking a FINRA Arbitration that Will Disclose Relevant Evidence

Federal Arbitration Act Precludes Parties from Contracting under State Law for Broader Judicial Review Once Motion to Vacate Is Removed, Provided FAA Applies

CAFA — Third Circuit Defines Local Controversy Elements — Jurisdiction Assessed Based on Defendants Remaining in Action — Plaintiff Bears Burden of Proving Lack of Federal Jurisdiction

RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity

Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings

Sanctions — Misconduct of Counsel Should Not Be Visited on Client Absent Evidence of Client Participation

Experts — Guilty Knowledge and Criminal Intent Are Matters of Fact, Not Law, and Proper Topics of Expert Testimony

Email Evidence — Attachments to Authenticated Emails Are Themselves Authenticated

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

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