For years, anyone who has litigated RICO claims in the Ninth Circuit has had to deal with a very amorphous definition of association-in-fact enterprise — one that could (but not necessarily would) be satisfied by almost any contractual relationship. Now, there is a strong argument that ‛could“ has now become ‛would.“ In an en banc decision, Odom v. Mi ...

The plaintiffs in the putative class action styled McMorris v. TJX Cos., 2007 U.S. Dist. LEXIS 47458 (D. Mass. June 26, 2007), filed a state court complaint on behalf of ‛[r]esidents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores ...

After being convicted and sentenced to more than 20 years imprisonment for drug trafficking, the defendant in Vo v. United States, 2007 U.S. Dist. LEXIS 47093 (D Haw. June 28, 2007), claimed ineffective assistance of counsel because his lawyer did not object to testimony from the defendant’s wife on grounds of marital privilege. The wife testified that her ...

Federal Rule of Civil Procedure 23(f) provides that: ‛A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order.“ The ten-day time limit is jurisdictional. The plaintiffs in Jenkins v ...

Download associated file: Spoliation Power Points.pdf  Attached is a power point presentation (in PDF format) that was used in connection with a continuning judicial education program at the National Foundation for Judicial Excellence in Chicago on June 30, 2007. It upda ...

The prosecution in People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007), was evidently unable to authenticate an email in the traditional way. (See Internet and Email Evidence on the Recent Articles page for a description of the customary ways to authenticate email evidence.) The witness, moreover, was hostile and said she c ...

The deposition of the defense expert in Jama v. Esmor Correctional Servs., 2007 U.S. Dist. LEXIS 45706 (D.N.J. June 25, 2007), suggested that defense counsel had not been diligent in instructing the expert to preserve his files and, worse, that some data had been lost: Q. In May were you asked when you were retained by the defendant's law ...

The interesting issue in Watson v. United States, 485 F.3d 1100 (10th Cir. 2007), was, in the Court’s words: ‛What to do when an expert witness says he isn't really so expert?“ The plaintiff prisoner was suing the government under the Federal Tort Claims Act for negligent treatment of his medical condition, resulting in a brain hemorrhage. The govern ...

Negligent failure to diagnose cancer was the original tort but it was not the basis for suit in Grant v. High Point Regional Health Sys., 2007 N.C. App. LEXIS 1331 (N.C. App. June 19, 2007). Three years after the treatment, plaintiff’s counsel notified the hospital by letter of the potential malpractice claim and requested records and x-rays (enclosing an ...

The issue in FMC Techs., Inc. v. Edwards, 2007 U.S. Dist. LEXIS 42512 (W.D. Wash. June 12, 2007) was whether a no-reliance clause embedded in a merger/integration clause operated to foreclose a claim of fraud in the inducement. The clause in question read as follows: Full Integration/Amendments in Writing. This Agreement is the ...