The plaintiff in Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 (D.N.J. Feb. 21, 2008), a putative class action, asserted federal jurisdiction under the Class Action Fairness Act. CAFA jurisdiction requires 100 or more potential class members and an amount in controversy exceeding $5 million. The defendant filed an affidavit from a corporate officer ...

Corporate officers and directors are statutorily permitted to rely on advice of counsel when making decisions in their fiduciary capacities. When these actions are challenged after they have left office, they commonly want to assert as a defense reliance on the advice they received from counsel to the corporation (either in-house or outside), and it would seem only ...

One of the reasons that the 21-day safe harbor was introduced in the 1993 amendment to Federal Rule of Civil Procedure 11 was to encourage parties to withdraw sanctionable papers or positions without litigation. That has proved generally effective under Rule 11. But this safe harbor does not govern non-Rule 11 sanctions motions, as reflected in the Sixth Circuit� ...

As discussed in the article Internet and Email Evidence on the Recent Articles page (http://www.josephny_live.com/articles/viewarticle.php?11), there are many ways to authenticate email evidence. One simply way is to have one of the participants to the exchanges testify that printouts are fair and accurate copies. See, e.g., Ussery v. State, 2008 Tex ...

In a decision that has important implications outside the bankruptcy context, Bankruptcy Judge Martin Glenn ruled in In re Food Mgmt. Group, LLC (Grubin v. Rattet), 380 B.R. 677, 2008 Bankr. LEXIS 112 (Bankr. S.D.N.Y. Jan. 23, 2008), that counsel to the debtor owes a fiduciary duty to the estate (as opposed to the duty owed to the debtor in possession, coun ...

Hensley v. United States District Court Eastern District of California, 2008 U.S. Dist. LEXIS 11965 (E.D. Cal. Feb. 15, 2008): On a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). A court may take judicial notic ...

The notice of appeal is jurisdictional. Absent a notice, the Court of Appeals lacks jurisdiction over the appeal. Generally, a notice of appeal in the name of the client alone is insufficient to obtain review of sanctions imposed on counsel. Counsel ordinarily must appeal in his or her own name, although this requirement is somewhat leniently applied under the 199 ...

The pro se appellant in Halim v. Great Gatsby’s Auction Gallery, Inc., 2008 U.S. App. LEXIS 3165 (7th Cir. Feb. 14, 2007), contending, inter alia, that “the arbitrator ‘manifestly disregarded the law’ by declining to formally rule on a discovery dispute.” The Seventh Circuit rejected the argument, reasoning that the failure to decide the discovery ...

In In re IPO Secs. Litig., 2008 U.S. Dist. LEXIS 11058 (S.D.N.Y. Feb. 14, 2008), Judge Shira A. Scheindlin rejected the argument of Credit Suisse that disclosure of work-product-protected reports to the Securities and Exchange Commission staff pursuant to a confidentiality agreement preserved work product protection. After a lengthy analysis of the cases and ...

Does a party's loss to theft of a laptop that contains the only copy of electronic data constitute spoliation? This was one of the questions presented to District Judge Nancy F. Atlas in Diabetes Centers of Am., Inc. v. Healthpia Am., Inc., 2008 U.S. Dist. LEXIS 8362 (S.D. Tex. Feb. 5, 2008). The Chief Executive Officer of the corporate defendant (Healthpia ...