The moving defendant in Tojas v. Theobald, 2007 U.S. Dist. LEXIS 62321 (E.D.N.Y. Aug. 23, 2007), did not file his Rule 11 motion until after he had prevailed on the merits at trial. At that point, it was impossible for the plaintiff to withdraw any allegedly frivolous claims. That meant that the plaintiff could not, by definition, take advantage of the 21-d ...

There is some confusion in the case law as to whether there is a split in the Circuits concerning whether § 1927 authorizes the imposition of sanctions on pro se litigants, as reflected, e.g., in the recent decision in Wallace v. Kelley, 2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. 1, 2007), which (i) cites Alexander v. United States, 121 F.3 ...

If enacted by Congress, Federal Rule of Evidence 502 will define the scope of subject matter waiver of both attorney-client privilege and work product protection. Unless and until that happens, the common law governs. One traditional event triggering a waiver is a party’s reliance on advice of counsel as a defense. The Federal Circuit explored the scope of such ...

It is difficult to get a civil securities fraud case to trial, but there are gems to pluck from the criminal cases, which are tried. In criminal securities fraud prosecutions, a conscious avoidance instruction "permits a jury to find that a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fac ...

The plaintiff in Synergetics, Inc. v. Hurst, 2007 U.S. Dist. LEXIS 61286 (E.D. Mo. Aug. 21, 2007), had meritorious claims against three former employees who, according to the judge and the jury, cheated the plaintiff and then lied about it under oath. The plaintiff brought two suits — the instant one against Hurst and McGowan, and a separate one against Lu ...

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 ...