Our post of August 27, 2007, reported the Federal Circuit’s holding in In re Seagate Tech., LLC, 2007 U.S. App. LEXIS 19768 (Fed. Cir. Aug. 20, 2007), that — in a case charging willful infringement — the subject matter waiver effected by asserting the defense of advice of counsel was limited to the advice of opinion counsel (the pre-litigation counsel o ...

Download associated file: S 344.pdf  On December 6, 2007, the Senate Judiciary Committee passed S.344 -- a bill to permit the televising of Supreme Court proceedings. It is attached. ...

District Judge Harold Baer, Jr.’s opinion in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007), is worth reading. The findings are extensive but it is the analytical framework that merits attention. It is refreshing to abandon cynicism about the profession and to focus every once in a while on what the pra ...

The issue in United States v. Atkinson, 2007 U.S. Dist. LEXIS 88435 (E.D. Pa. Dec. 3, 2007), was the appropriateness of sanctions under the statutory sanctions provision of the False Claims Act, 31 U.S.C. § 3730(d)(4). The prevailing defendants requested an award of attorneys' fees and expenses at the conclusion of 13 years of litigation. The language of � ...

The bank in Shah v.Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007), a foreclosure action, moved for summary judgment. In order to prove non-payment, it offered a letter it sent to homeowners referencing their non-payment, but the court excluded the letter as hearsay when it was offered to establish the homeowners' failure to make payment ...

The Supreme Court has ruled that a federal court must have subject matter jurisdiction to impose civil contempt sanctions but not Rule 11 sanctions. Compare U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 87 U.S. 72, 76-80 (1988) (civil contempt) with Willy v. Coastal Corp., 503 U.S. 131 (1992) (Rule 11). What about criminal contempt ...

A contractual duty to preserve data may suffice to trigger spoliation sanctions if the data are destroyed in violation of the contract -- at least if another party to the contract is pursuing the claim. The Asset Purchase Agreement in In re: Quintus Corp. (Avaya, Inc. v. Gwynne), 2007 U.S. Dist. LEXIS 87628 (D. Del. Nov. 29, 2007), required the purchaser to ...

Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) has a real prospect of being enacted in this session of Congress, which ends in mid-December. The Rule under consideration is substantially identical to that passed by the Advisory Committeee. ...

Download associated file: Restyled Fed R Civ P.pdf  Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes or painting abs on the Venus de Milo. Nothing substantive changes but someone prefers the look. The new look — the text of t ...

Alternative & Inconsistent Pleading. Alternative and inconsistent pleading requires that you plead in the alternative. Mere inconsistency can be fatal. As the Ninth Circuit put it in Maloney v. Scottsdale Ins. Co., 2007 U.S. App. LEXIS 26639 (9th Cir. Nov. 14, 2007): “The Federal Rules of Civil Procedure allow parties to plead inconsistent factua ...