On Monday, I moderated an ALI-ABA seminar exploring Bell Atlantic v. Twombly, 2007 U.S. LEXIS 5901 (U.S. May 21, 2007) (see our post of May 27, 2007), with panelists Chief Judge Anthony Scirica of the Third Circuit, Professors Steve Burbank of the University of Pennsylvania and Arthur Miller of NYU, and two lawyers on the opposite sides of the case in the Sup ...

The American Rule holds that litigants pay their own attorneys' fees. The Supreme Court ruled in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), that the federal courts possess the inherent power to impose sanctions, including an adversary's attorneys' fees, on a lawyer or litigant who has willfully abused the judicial process or conducted litigation in bad fai ...

Summaries. The government in United States v. Dukes, 2007 U.S. App. LEXIS 15961 (4th Cir. July 3, 2007), offered a financial summary chart into evidence that it did not present to the defendant until two weeks into the trial. It had presented an earlier iteration, but that version was much less detailed. The defendant, who was on trial for sponsorin ...

Third Circuit Judge Thomas Ambro has written an important opinion analyzing the corporate attorney-client privilege — focusing on in-house counsel but not limited to them — in the context of claims brought by subsidiaries (in bankruptcy) against their ultimate parent. In re Teleglobe Commn’cs Corp. 2007 U.S. App. LEXIS 16942 (3d Cir. July 17, 2007). ...

The Cayman Islands plaintiff sought to enforce in New York a Swedish arbitral award against the State Oil Company of the Azerbaijan Republic ("SOCAR") in Frontera Resources Azerbaijan Corp. v. SOCAR, 479 F.Supp.2d 376 (S.D.N.Y. 2007). Because the defendant was an instrumentality or agency of the Azerbaijan Republic, statutory subject matter and personal juri ...

The issue initially presented to the Court in L.G. Philips LCD Co. v. Tatung Co., 2007 U.S. Dist. LEXIS 50822 (D. Del. July 13, 2007) was one of discovery — whether, on plaintiff’s motion, the defendants were obliged to furnish discovery on their advice of counsel defense. That led to the pleading question whether the advice of counsel defense must be pl ...

Plaintiff claims to have invented the advertising slogan "Hot n' Ready" for pizza and sued the defendant for appropriating it, in Pinnacle Pizza Co. v. Little Caesar Enters., 2007 U.S. Dist. LEXIS 488845 (D. S.D. July 3, 2007). At his deposition, the President of the plaintiff was asked if he had taken any steps to determine whether the phrase was already in ...

In a federal diversity action, is spoliation an issue of state or federal law? That is an ambiguous question because ‛spoliation“ has multiple meanings. If there is a recognized state cause of action for spoliation, that type of spoliation is clearly substantive and the claim will be recognized in federal court. What about spoliation as a sanction? Given the ...

There were parallel proceedings in state and federal court at the time the defense moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(3) (improper venue) in Busch v. Robertson, 2007 U.S. Dist. LEXIS 40689 (N.D. Tex. June 5, 2007). While the motion was pending, judgment was entered in favor of two of the defendants in the state court proceeding. Because th ...

Federal Rule of Civil Procedure 56 requires the submission of admissible evidence on summary judgment. Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence...." The cases consistently hold that inadmissible matter may not be considered on sum ...