The pro se defendant in BidZirk, LLC v. Smith, 2007 U.S. Dist. LEXIS 78481 (D.S.C. Oct. 22, 2007), was a blogger being sued for trademark infringement for improperly placing the plaintiff’s trademark on his blog. That isn’t the interesting part (the trademark claim was dismissed on summary judgment). In the course of the litigation, the plaintiff ...

Professors Steve Burbank and Tobias Wolff have put together a stellar symposium on CAFA that will be held at the University of Pennsylvania Law School on Friday afternoon, November 30 and Saturday, December 1. Six panels will discuss the Class Action Fairness Act from six perspectives, based on a series of papers prepared for the symposium. Participants include Pe ...

Defendant No. 1 in United States v. Williams, 2007 U.S. App. LEXIS 24725 (2d Cir. Oct 23, 2007), challenged on appeal the testimony of one of the government’s experts under Daubert and Fed.R.Evid. 702. He maintained, and the parties conceded, that it was he who had requested a Daubert hearing in the District Court to challenge the same expert ...

Five years ago, in Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), the Ninth Circuit ruled that the answer to the question — "When a state statute incorporates a federal statute in defining a violation of state law, is a federal question thereby created?" — was ‛No.“ On October 23, 2007, the court addressed whether this answer has been changed by ...

The defense expert in Physicians Dialysis Ventures, Inc. v. Griffith, 2007 U.S. Dist. LEXIS 78879 (D.N.J. Oct. 23, 2007), destroyed her notes of conversations she had with the defendant and defense counsel. She was thereafter asked to produce them by the plaintiff and, when she couldn’t, the plaintiff sought spoliation sanctions. Judge Jerome B. Simandle ...

When privileged or work product information is exchanged between the relator (the original private plaintiff) and the government in an action brought under the False Claims Act, 31 U.S.C. § 3729 ff., neither privilege nor work product is waived — at least if the material is exchanged prior to a decision by the government to decline to prosecute the action ...

The issue of first impression in CitiFinancial, Inc. v. Lightner, 2007 U.S. Dist. LEXIS 78647 (N.D. W.Va. Oct. 22, 2007), was whether the Class Action Fairness Act overturned pre-CAFA precedent barring a plaintiff from removing when it becomes a counterclaim defendant where the counterclaim falls within CAFA. The Court’s answer was No. The plaint ...

Whether aiding and abetting liability may be asserted under the Alien Tort Claims Act (a/k/a Alien Tort Statute), 28 U.S.C. § 1350, has never been addressed by the Supreme Court. Two of three members of the panel in Khulumani v. Barclay Nat’l Bank, 2007 U.S. App. LEXIS 24370 (2d Cir. Oct. 12, 2007), held that that such a claim is cognizable but for quite ...

The gravamen of the complaint in Morrison v. Rankin, 738 N.W.2d 588 (Wis. App. 2007) was medical malpractice. As a sanction for spoliation committed by the defendants, the court directed a verdict in favor of the plaintiff on the issue of informed consent. The defense then admitted that the surgery caused permanent nerve injury and, after a trial limited to ...

The defendant in United States v. Gagliardi, 2007 U.S. App. LEXIS 24644 (2d Cir. Oct. 22, 2007) claimed that emails and transcripts of instant-message chats offered by the government were not properly authenticated because they were cut from his electronic communications and pasted into word processing files. The defendant argued that they were not originals ...