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 LEXIS 2417 (10th Cir. Feb. 1, 2007) (unpublished), originally sued the defendants in state court for medical malpractice arising out of her five-year treatment relationship with a doctor on the hospital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 ...

Timing is everything. The plaintiff in Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., 2007 NY Slip Op 50149U; 2007 N.Y. Misc. LEXIS 191 (Sup. Ct. N.Y. Co. Jan. 11, 2007), moved for summary judgment on an account stated claim for unpaid legal bills but its moving papers did not contain detailed enough affidavits as to its regular practice of mailing out bill ...

Professor Georgene Vairo of Loyola L.A. is fond of dividing the Circuits, for Rule 11 purposes, into hawks and doves. She identifies as the leading hawk Circuit the Seventh. In Malec Holdings II Ltd. v. English, 2007 U.S. App. LEXIS 2349 (7th Cir. Jan. 24, 2007), the Court lived up to its billing. The plaintiff in Malec commenced a frivolous §1983 action to r ...

The Supreme Court held in Grable & Sons Metal Prods., Inc. v. Darue Engr’g & Mfg., 545 U.S. 1 (2005), that federal question jurisdiction may exist over a state law claim that entails an important, embedded federal issue. Since that decision, the lower courts have been grappling with its ramifications. Two district court opinions from last week are illustrativ ...