When Daubert was decided in 1993, it was initially perceived as liberalizing the admissibility of expert evidence — especially novel scientific evidence — because it rejected the strictures of the Frye test. In December 2000, when the Advisory Committee on the Federal Rules of Evidence codified Daubert in Rule 702, the Committee Note obser ...

Generally, a notice of appeal in the name of the client alone is insufficient to obtain review of sanctions imposed on counsel. Counsel ordinarily must appeal in his or her own name, although this requirement is somewhat leniently applied. Fed. R. App. P. 3(c) was amended in 1993 to provide that (i) the ``notice of appeal must ... specify the party or parties takin ...

It is commonplace to characterize the extraterritorial application of the securities laws as implicating the subject matter jurisdiction of the federal courts. Perhaps no longer. In In re Parmalat Secs. Litig., 2007 U.S. Dist. LEXIS 53459 (S.D.N.Y. July 24, 2007), Judge Lewis Kaplan observed that: In Arbaugh v. T & H Corp., [546 ...

The defendant excess D&O carrier in Comerica Inc. v. Zurich Am. Ins. Co., 2007 U.S. Dist. LEXIS 54517 (E.D. Mich. July 27, 2007), denied coverage for Section 11 claims asserted against the plaintiff Company. The Company settled with the plaintiffs for an amount in excess of the $20 million primary policy, but the primary carrier paid only $14 million, with t ...

Complicated actions involve teams of lawyers. The most senior on the team may have little to do with drafting or filing papers with the court, but Rule 11 is not limited in scope to those who sign offending papers (not since December 1, 1993). There are at least two ways that lead counsel may fall victim to Rule 11. The first is ‛presenting“ a baseless or ill ...

The dismissal motion is the first, and often the last, theatre of war in securities class actions. The complaint is the key document, but whether the motion is won or lost often depends on which documents the court can consider outside the complaint without turning the motion into one for summary judgment. Usually, this requires that the documents are not consider ...

The breadth of SLUSA’s Delaware carve-out was the focus of District Judge John G. Koeltl’s opinion in Indiana Electrical Workers Pension Trust Fund v. Millard, 2007 U.S. Dist. LEXIS 54203 (S.D.N.Y. July 25, 2007). The plaintiffs’ New York state court class action was purely an options backdating claim sounding in breach of fiduciary duty — the duty ...

To satisfy PSLRA pleading requirements, securities fraud complaints frequently rely on confidential informants. A substantial body of law has grown up concerning whether, or how much, confidentiality is permissible. The Seventh Circuit’s decision on Friday, July 27, 2007, in Higgingotham v. Baxter Int’l, Inc., 2007 U.S. App. LEXIS 17918 (7th Cir. July 2 ...

Under the Supreme Court’s opinion in American Pipe v. Utah, 414 U.S. 538 (1974), the pendency of a class action tolls the applicable statute of limitations for class members. In the Southern and Eastern Districts of New York, however, precedent held that American Pipe’s tolling of the applicable statutes of limitations for absent class members did ...

District Judge T. John Ward found serious discovery abuse on the part of the defendants in Juniper Networks, Inc. v. Toshiba Am., Inc., 2007 U.S. Dist. LEXIS 50096 (E.D. Tex. July 11, 2007). There is nothing novel in that. Some of the sanctions that he imposed, moreover, under the Court’s inherent power and Rule 37 were not unusual: preclusion of certain ...