The plaintiff in Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006), took a 30(b)(6) deposition of the corporate representative of one of the two defendants. The plaintiff was prepared to read selected testimony into the record if the witness did not appear at trial, but he did. The District Court, however, precluded the plaintiff from taking l ...

The decision in Al-Haddad Commodities Corp. v. Toepfer Int’l Asia Pte., Ltd., 2007 U.S. Dist. LEXIS 29405 (E.D. Va. April 19, 2007), confirmed the international arbitration award before it, but it is most interesting for its statement of the standards for review of an award under the Federal Arbitration Act. The threshold point for the Court was the relationsh ...

Unlike Rule 11, which expressly authorizes sanctions against an offending attorney, client or both, § 1927 does not apply to parties but only to "[a]ny attorney or other person admitted to conduct cases in any court of the United States...." Only lawyers may, therefore, be sanctioned under the statute. If a pro se litigant is a lawyer, the statute applies. < ...

Bills sent from lawyer to client are privileged only to the extent that they reflect the specific nature of legal services rendered. Otherwise, a bill for legal services is not privileged. See the recent decision in Sobba v. Elmen, 2007 U.S. Dist. LEXIS 29172 (E.D. Ark. April 19, 2007), quoting Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) ("Typically, ...

The plaintiff in LifeNet, Inc. v. Musculoskeletal Transplant Foundation, 2007 U.S. Dist. LEXIS 29058 (E.D. Va. April 10, 2007), accused the defendant of willful patent infringement. In its defense, defendant MTF intended to rely on the opinion that was rendered in 2002 by a Pennie & Edmonds’ partner named Stimpson who concluded that defendant MTF’s process did ...

The plaintiff insured in Weiss v. First Unum Life Ins. Co., 2007 U.S. App. LEXIS 7613 (3d Cir. April 3, 2007), filed a state law claim for wrongful denial of coverage in New Jersey state court. The insurer removed on ERISA preemption grounds, and the plaintiff added a RICO claim. The state common law claims were dismissed as pre-empted by ERISA, and the RICO cl ...

The fact that a judge enters sanctions against a litigant or its counsel does not mandate recusal of the judge pursuant to 28 U.S.C. § 455, even if the judge also refers counsel's conduct to the appropriate disciplinary authorities, under the decision in Conklin v. Warrington Township, 2007 U.S. Dist. LEXIS 10478 (M.D. Pa. Feb. 15, 2007). The issue for recusal is ...

In United States v. Metuchen-Gamba, 2007 U.S. App. LEXIS 8291 (9th Cir. April 11, 2007), a divided panel of the Ninth Circuit ruled that a district court judge may lawfully appoint a magistrate judge to preside over closing argument at a felony criminal trial if the defendant's counsel has, for trial tactic or legal strategy purposes, agreed to such appointment. ...

The Second Circuit ruled in Overton v. Todman & Co., 2007 U.S. App. LEXIS 4239 (2d Cir. Feb. 26, 2007), that an auditor may be primarily liable for securities fraud for failing to correct a certified financial statement that it later determines to have been false. This from a Court that has frequently exonerated auditors from primary liability unless they have a ...

The No Child Left Behind Act does not create a private right of action, at least not for an entity that provides tutoring and other supplemental educational services. ‛There is no language in the statutory provisions … that demonstrates Congress’s intent to ‘unambiguously confer[]’ on the plaintiff an ‘individual entitlement.’“ Alliance for Childre ...