In United States v. Evans, 2007 U.S. App. LEXIS 11344 (7th Cir. May 15, 2007), the Seventh Circuit upheld the insider trading conviction of a tippee despite the fact that his alleged tipper was acquitted and the tippee was himself acquitted of conspiring with the alleged tipper (relying on Standefer v. United States, 447 U.S. 10 (1980), in which the Su ...

Defendant Doneen Barone in World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. April 16, 2007), did not destroy the hard drive that contained relevant evidence — her husband did. Defendants argued that they could not be sanctioned because the spoliator was not a party to the action. District Judge Thelton E. Henderson rejected this argume ...

The plaintiff in Calandra v. Sodexho, Inc., 2007 U.S. Dist. LEXIS 31418 (D. Conn. April 27, 2007), prepared personal notes before hiring a lawyer to file an age discrimination claim. The defendants sought to compel production of the notes. The defendant argued, first, that the notes could not be privileged because they were prepared before counsel was ...

The Eleventh Circuit's holding in Lowery v. Alabama Power Co., 2007 U.S. App. LEXIS 8289 (11th Cir. 2007), that no jurisdictional discovery is permissible on removal (see posting of May 10, 2007) is not limited to Class Action Fairness Act cases. This holding has potentially dramatic consequences for removal of even the most routine cases. In the words of D ...

For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has be ...

‛The right of access to the courts is neither absolute nor unconditional and the Constitution confers no right to prosecute frivolous or malicious actions.“ Zhu v. Federal Housing Finance Board, 2007 U.S. Dist. LEXIS 32398 (D. Kan. May 1, 2007). In Zhu, District Judge Kathryn H. Vratil sets forth the five factor test applied in the Tenth Circui ...

The Eleventh Circuit exhaustively analyzed the mass action provisions of CAFA in Lowery v. Alabama Power Co., 2007 U.S. App. LEXIS 8289 (11th Cir. 2007). Its key holdings: [1] One Defendant Removes Entire Action as to All Defendants. ‛[I]n light of the plain language of CAFA, removal under the statute encompasses all the claims in the 'acti ...

Party A serves a document request on Party B. Party B has the unconditional right, by contract, to obtain responsive documents held by Party C. Are the documents held by Party C in Party B’s ‛possession, custody or control“ within the meaning of Fed.R.Civ.P. 34? Under the analysis of District Judge Lewis A. Kaplan in United States v. Stein, 2007 ...

The Ninth Circuit issued an en banc opinion on May 4, 2007, in Odom v. Microsoft Corp., 2007 U.S. App. LEXIS 10519 (9th Cir. May 4, 2007) ‛to correct and clarify our case law“ on the meaning of an association-in-fact enterprise. Key holdings: 1. No Separate Structure Requirement. Noting that four circuits require that an a ...

The defendant in Crow v. Wolpoff & Abramson, 2007 U.S. Dist. LEXIS 31356 (D. Minn. April 19, 2007), a Fair Debt Collection Practices Act case, was so incensed by the complaint that it filed an affirmative defense asserting that the action was brought in bad in violation of Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. The plaintiff moved to strike the affirmative ...