A Colombian power company entered into a contract to sell power to a Colombian state-owned public utility, in TermoRio S.A. E.S.P. v. Electrificadora del Atlantico S.A. E.S.P., 487 F.3d 928 (D.C. Cir. 2007). The power company obtained a $60 million arbitration award in Colombia, which the utility successfully persuaded a Colombian court to overturn on the gr ...

The issue in Dukes v. Wal-Mart, 2007 U.S. App. LEXIS 28558 (9th Cir. Dec. 11, 2007), was the propriety of class certification. The defense challenged, among other things, the manageability of the case. One very legitimate question was exactly how you try a case with a plaintiff class numbering 1.5 million. The Ninth Circuit looked with favor at the though ...

The IRS summons in United States v. Textron, 507 F.Supp.2d 138 (D.R.I. 2007), sought the corporation’s tax accrual workpapers. Textron claimed that the workpapers were privileged because they included, inter alia, estimates by Textron’s counsel expressing, in percentages, their judgments regarding Textron’s chances of prevailing in any litigatio ...

Chancellor William B. Chandler III of the Delaware Court of Chancery ruled in Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007), that the attorney-client privilege between a Special Committee of a Board of Directors and its outside counsel was waived by presentation of counsel’s report to the full Board. The Court held that the waiver extended to ...

Download associated file: S 2450.pdf  Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was introduced in the Senate on December 11, 2007 as The Leahy-Specter Bill. The text of the bill is attached. The floor statement of S ...

The intermediate appellate court's reversal of the $1.58 billion judgment entered against Morgan Stanley in Florida state court (see our post of March 23, 2007) is now final and unreviewable. The Florida Supreme Court voted 5-0 to reject Pereleman's attempt to reinstate the jury's verdict. The New York Times article reporting this development can be found at: htt ...

Does the plaintiff in an employment discrimination action waive the psychotherapist-privilege by alleging serious medical problems — here, cardiovascular disease, hypertension, gout, and obstructive sleep apnea — with a history of depression but does not specifically allege psychological injuries? Not under the D.C. Circuit’s opinion in Koch v. SEC, 48 ...

Whether a computer crash may constitute spoliation has been discussed in previous posts of June 29 and March 5, 2007. In this installment, the plaintiff in Orrell v. Motorcarparts of Am., Inc., 2007 U.S. Dist. LEXIS 89524 (W.D. N.C. Dec. 5, 2007), was once again not exactly pristine in preserving evidence. Among other things, she used the “Evidence Elimin ...

The critical issue on many motions to dismiss concerns just what extra-complaint documents the court may properly consider. Perhaps the most expansive formulation is employed in securities actions. The following is taken from Securities and Exchange Commission v. Power, 2007 U.S. Dist. LEXIS 87632 (S.D.N.Y. Nov. 27, 2007): On a motion t ...

Can the federal government be sued under the Fair Debt Collection Practices Act for its efforts to collect student loans? Deciding this issue of first impression, the Fifth Circuit ruled negatively in Wagstaff v. U.S. Dep’t of Educ., 2007 U.S. App. LEXIS 28001 (Dec. 4, 2007), reasoning that the FDCPA lacks the prerequisite — a statutory provision “uneq ...