It is well-settled that a judicial reprimand of counsel may be entered as a sanction, and that this sanction is appealable. It is equally true that ‛mere criticism“ of counsel is not appealable. (It never seems ‛mere“ at the time.) The question is when judicial criticism that is not explicitly entered as a sanction may be appealed — specifically, wha ...

The contractual choice of law provision in Schwan’s Sales Enters. v. SIG Pack, Inc., 2007 U.S. App. LEXIS 2933 (8th Cir. Feb. 9, 2007), dictated the application of Wisconsin law. This diversity action was filed in the District of Minnesota. There was no dispute that the rights and obligations of the parties would be determined under Wisconsin law. But, after ...

The Ninth Circuit’s split opinion affirming certification in the class action against Wal-Mart alleging sex discrimination, Dukes v. Wal-Mart, Inc., 2007 U.S. App. LEXIS 2601 (9th Cir. Feb. 6 2007), contains a significant holding regarding the evidentiary standard governing experts who testify at the class certification stage. ‛[C]ourts need not apply the full ...

In certifying the securities class acation against NovaStar Financial and its directors and officers on Thursday, Judge Ortrie D. Smith of the Western District of Missouri rejected defense contentions that the indictment of Milberg Weiss rendered it unsuitable as class counsel. "The attorneys listed in the indictment are not involved in this case and have, in fact, ...

Does SLUSA mandate exclusive federal jurisdiction over class actions brought solely under the Securities Act of 1933 (i.e., which assert no state law claims), or does the Securities Act’s provision for concurrent and unremovable state court jurisdiction control? There is a split among the district courts that have considered this issue. On Monday of this week, J ...

The Third Circuit recently completed Model Civil Jury Instructions, which are excellent and useful outside the Third Circuit as well as in. These pattern instructions are posted on the Third Circuit website at http://www.ca3.uscourts.gov/modeljuryinstructions.htm. The instructions were drafted by a committee constituted by Third Circuit Chief Judge Anthony Scirica ...

According to the opinion in Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007), Lotus Notes has a feature that can keep you awake at night: "[I]n the Lotus Notes application, unlike Microsoft Outlook and other email platforms, even though mails had been moved and segregated into separately labeled subfolders, and said ...

Download associated file: Burbank Summary Judgment 2007 Memo.pdf  In connection with the mini-conference of the Advisory Committee on the Federal Rules of Civil Procedure (discussed in the post of January 30, 2007), Professor Stephen B. Burbank, the David Berger Professor ...

The plaintiff in Zhu v. St. Francis Health Center, 2007 U.S. App. LEXIS 2417 (10th Cir. Feb. 1, 2007) (unpublished), originally sued the defendants in state court for medical malpractice arising out of her five-year treatment relationship with a doctor on the hospital staff. After the state court dismissed all claims, she filed a RICO action against the same defend ...

If a plaintiff mails a request for waiver of service pursuant to Fed.R.Civ.P. 4(m) before the statute of limitations expires, but the defendant executes the waiver after expiration, is the suit time barred? In other words, does the execution relate back to the time of plaintiff's mailing or otherwise revive the claims? In what it perceived to be a case of first im ...