After being served with notices of default under trust indentures pursuant to which it had issued securities, the issuer filed a state court declaratory judgment action. The Indentures incorporated the Securities Exchange Act of 1934 and the Trust Indenture Act of 1939 (“TIA”). The bank removed, arguing that the resolution of the suit turned on the “purely f ...

The Fifth Circuit in Gulf Petro Trading Co. v. Nigerian Nat’l Petroleum Corp., 2008 U.S. App. LEXIS 256 (5th Cir. Jan. 7, 2008), faced serious charges that an international arbitration tribunal had accepted a $25 million bribe to decide the case in favor of the defendant. After receiving an unsatisfactory award but before it found evidence of the bribe, ...

In a January 2 opinion denying leave for interlocutory review of his decision of November 30, 2007 (see our post of December 14, 2007), Chancellor Chandler stressed the limitations of the privilege waiver analysis of his prior opinion. Some lawyers — and the defense counsel seeking interlocutory review — expressed concern that the November 30 opinion doomed any ...

The defendant in Large v. Mobile Tool Int’l, Inc., 2008 U.S. Dist. LEXIS 1297 (S.D. Ind. Jan. 7, 2008), dismantled, reconstructed and discarded key components of the boom that it had manufactured and which had injured the plaintiff while he was using a bucket truck in the course of his employment as a lineman. Two interesting parts of the opinion. First, an issu ...

From Barton v. Zimmer Inc., 2008 U.S. Dist. LEXIS 1296 (N.D. Ind. Jan. 7, 2008) (citations omitted): 1. “E-mails, with sometimes different and multiple recipients and authors, add complexity to the analysis of the attorney-client privilege.... ‘Email strands can span over several days, and they may have many different recipients and ...

Echoing the justification of hordes of surly lawyers, the plaintiff’s counsel in Laddcap Value Partners LP v. Lowenstein Sandler PC, 2007 N.Y. Misc. LEXIS 8642; 238 N.Y.L.J. 116 (Sup. Ct. N.Y. Co. Dec. 5, 2007) — when called to task for speaking objections, sexist comments and generally obnoxious behavior — defended with the assertion that “while he � ...

On remand from the Supreme Court, the Seventh Circuit upheld the complaint in Makor Issues & Rights Ltd. v Tellabs Inc., 2008 U.S. App. LEXIS 975 (7th Cir. 2005). In the course of doing so, it sharply circumscribed its prohibition against plaintiffs’ relying on confidential sources in their complaints (see our post of July 29, 2007, discussing Higgingotham v. Bax ...

Download associated file: FJC 12e Paper.pdf  At the meeting of Standing Committee on Rules of Practice and Procedure last week at Pasadena, the Chair, Judge Lee Rosenthal, raised the question as to whether Rule 12(e) (Motion for a More Definite Statement) is still useful ...

The plaintiff in Heary Bros. Lightning Protection Co. v. Lightning Protection Corp., 2008 U.S. App. LEXIS 377 (9th Cir. Jan. 4, 2008), opposed the defendants’ motion for summary judgment on its Sherman Act claims but did not oppose summary judgment on three other counts. The District Court imposed sanctions under the inherent power of the court, finding “that t ...

In a suit for unpaid sales commissions, Mikels v. Unique Tool & Mfg. Co., 2007 U.S. Dist. LEXIS 91814 (W.D. N.C. Dec. 3, 2007), the defendant asserted as an affirmative defense the right to offset against any recovery "any previous overpayment of commissions" paid to the plaintiff. The plaintiff moved for summary judgment on the ground that, while his claim was tim ...