It is well settled that a governmental entity may be a RICO plaintiff but not a RICO defendant, even though that means it is a ‛person“ for some purposes and not others. See Joseph, Civil RICO: A Definitive Guide § 11(A) (2d ed. 2000). In an appeal arising out of the conviction of former Illinois Governor George Ryan, United States v. Warner, 2 ...

The plaintiffs' lawyer in In re Ski Train Fire in Kaprun Austria, 2007 U.S. Dist. LEXIS 60229 (S.D.N.Y. Aug. 16, 2007), filed Chapter 11 bankruptcy. He reported $ 13.6 million in outstanding debts. Among the listed creditors were two expert witnesses in the Ski Train case whom he owed, respectively, $75,000 and $3 million. The ‛single most sig ...

The issues in Shroyer v. New Cingular Wireless Servs., Inc., 2007 U.S. App. LEXIS 19560 (9th Cir. Aug. 17, 2007), were whether (i) a class arbitration waiver in Cingular's standard contract was unconscionable, and (ii) the Federal Arbitration Act preempted a holding that the waiver was unenforceable. The Ninth Circuit held the waiver to be unconscionable und ...

A non-party lawyer objected on privilege grounds to a subpoena compelling him to produce documents and appear at a deposition. The district court ordered compliance with the subpoena, and designated the order (more precisely, the salient parts of the order dealing with this lawyer) a ‛final order“ within Fed. R. Civ. P. 54(b). The lawyer appealed. The Second ...

There were competing state and federal court derivative actions, and the state court complaint was dismissed failure to plead either demand on the corporation’s board of directors or the futility of such a demand. That generated the question in In re Sonus Networks, Inc., 2007 U.S. App. LEXIS 19471 (1st Cir. Aug. 16, 2007), as to whether the state court di ...

The plaintiff in Reichhold, Inc. v. United States Metals Ref. Co., 2007 U.S. Dist. LEXIS 59274 (D.N.J. 2007), sued the defendants for CERCLA violations seeking a declaratory judgment finding defendants liable for future cleanup costs. The defendants moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a provision under which ‛no ...

The district court may certify an otherwise non-final order to permit an interlocutory appeal under 28 U.S.C. § 1292(b) when its decision (1) involves a controlling question of law, (2) there is a substantial ground for difference of opinion about the controlling question, and (3) an immediate appeal would materially advance the ultimate termination of the litigati ...

There is some inconsistency in the caselaw as to whether, or when, judicial criticism of counsel is appealable. Generally, harsh judicial appraisal of attorney behavior, alone, does not constitute a sanction and is not appealable. To be appealable, the uncomplimentary judicial words must be expressly identified as a reprimand. See, generally, Joseph, Sanctions: T ...

There is now a clear and vibrant Circuit split as to whether American Pipe permits tolling for a plaintiff who files a separate action pending class certification, in light of the Ninth Circuit’s decision on Tuesday in In re Hanford Nuclear Reservation Litig., 2007 U.S. App. LEXIS 19291 (9th Cir. Aug. 14, 2007). Without citing the Second Circuit’s ...

The sanctions motion served by the defendants in Nisus Corp. v. Perma-Chink Sys., 2007 U.S. Dist. LEXIS 58363 (E.D. Tenn. Aug. 9, 2007) — more precisely, the second sanctions motion — sought sanctions pursuant to the court’s inherent power against the plaintiff and against ‛[plaintiff’s] counsel,“ but it did not ‛specifically identify which of p ...