Complex Lit Blog

Arbitration — By Signing NY Convention, Sovereign Waives Immunity from Enforcement in Other Signatory States, Per 28 U.S.C. §1605(a)(1) — No Waiver by Signing Int’l Agreement Not Mentioning Waiver — Waiver vs. Arb. Exceptions in §1605

Tatneft v. Ukr., 2019 U.S. App. LEXIS 15787 (D.C. Cir. May 28, 2019): J U D G M E N T This case was considered on the record fro ...

Tatneft v. Ukr., 2019 U.S. App. LEXIS 15787 (D.C. Cir. May 28, 2019): J U D G M E N T This case was considered on the record from the United States District Court for the District of Columbia,…

Confidentiality of Litigation Docs—3 Standards: Rule 26(c), Common Law Right of Access, 1st Amendment — Judicial Records, Including Summary Judgment Exhibits, Presumptively Available under Common Law Rt. — Unclear If 1st Amend. Applies to SJ Exhs.

In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 2019 U.S. App. LEXIS 14794, 2019 WL 2119630 (3d Cir. May 15, 2019): Following a decision of the Dis ...

In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 2019 U.S. App. LEXIS 14794, 2019 WL 2119630 (3d Cir. May 15, 2019): Following a decision of the District Court granting summary judgment to GlaxoSmithKline LLC ("GSK"), the losing…

Privilege & Work Product Apply to Public Relations Firm — Log Must Show All Elements of Priv. — Detailed Discussion of Fiduciary Exception (Inapt in Securities Fraud Case), Waiver, Predominant Business v. Legal Purpose, Crime-Fraud

Pearlstein v. Blackberry Ltd., 2019 U.S. Dist. LEXIS 45098, 2019 WL 1259382 (S.D.N.Y. March 19, 2019): OPINION AND ORDER REGARDING BLACKBERRY'S ...

Pearlstein v. Blackberry Ltd., 2019 U.S. Dist. LEXIS 45098, 2019 WL 1259382 (S.D.N.Y. March 19, 2019): OPINION AND ORDER REGARDING BLACKBERRY'S PRIVILEGE DESIGNATIONS KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE BACKGROUND This case is a putative class action alleging…

Arbitration — 2-Step Analysis: Whether (1) Parties Entered into Arb. Agreement, (2) If So, It Delegates to Arbitrator Issue of Arbitrability? — Whether Litigant Is Subrogated to Arb. Agmt. Is Step (1) Question — Schein Affects Step (2) Only

Lloyd's Syndicate 457 v. FloaTEC, L.L.C., 2019 U.S. App. LEXIS 11256 (5th Cir. April 17, 2019): This case concerns a disputed siting of Big Foot in ...

Lloyd's Syndicate 457 v. FloaTEC, L.L.C., 2019 U.S. App. LEXIS 11256 (5th Cir. April 17, 2019): This case concerns a disputed siting of Big Foot in the Gulf of Mexico. We refer to a floating oil-drilling platform that rests …

Rule 37(c)(1) Exclusion of Expert Testimony for Failure to Timely Disclose Expert Evidence “Falls in the Heartland of Case Management Decisions” and “Review Is Highly Deferential” (Good Quotes)

Grant v. Entertainment Cruises and Spirit Cruises, LLC, 2019 WL 2158218 (D.C. Cir. April 29, 2019): MEMORANDUM Grant appeals from a judgment entered against her after a bench trial in an action for personal injury she brought under the Jones Act,

Grant v. Entertainment Cruises and Spirit Cruises, LLC, 2019 WL 2158218 (D.C. Cir. April 29, 2019): MEMORANDUM Grant appeals from a judgment entered against her after a bench trial in an action for personal injury she brought under the Jones…

Supreme Court: Impossibility Preemption Based on Agency Unwillingness to Allow Action Required by State Law to Be Decided by Judge, Not Jury, Including Subsidiary Fact Questions

Merck Sharp & Dohme Corp. v. Albrecht, 2019 U.S. LEXIS 3542 (U.S. May 20, 2019): When Congress enacted the

Merck Sharp & Dohme Corp. v. Albrecht, 2019 U.S. LEXIS 3542 (U.S. May 20, 2019): When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., …

Testimony As to Authorship, Substance of Unadmitted Texts Allowed, Authenticated by Tone, Contents, Access to Sending Device — Best Evidence Not Addressed

Commonwealth v. Louf, 2019 Mass. App. Unpub. LEXIS 403 (Mass. Ct. App. May 23, 2019) (summary decision): MEMORANDUM AND ORDER PURSUANT TO

Commonwealth v. Louf, 2019 Mass. App. Unpub. LEXIS 403 (Mass. Ct. App. May 23, 2019) (summary decision): MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 Following an eight-day trial in October, 2016, a jury convicted the defendant, Joseph Louf, of…

Res Judicata: Federal Court Order Confirming Arbitration Award Has Same Preclusive Effect As Final Judgment, Which Is Determined by State Law in Diversity Case — Non-Party Parent Corp. Entitled to Same Preclusive Benefit as Wholly-Owned Subsidiary/Party

NTCH-WA, Inc. v. ZTE Corp., 2019 U.S. App. LEXIS 12283 (9th Cir. April 25, 2014): Plaintiff-Appellant NTCH-WA, Inc. previously arbitrated breach of con ...

NTCH-WA, Inc. v. ZTE Corp., 2019 U.S. App. LEXIS 12283 (9th Cir. April 25, 2014): Plaintiff-Appellant NTCH-WA, Inc. previously arbitrated breach of contract and related claims against ZTE USA, a wholly-owned subsidiary of Defendant-Appellee ZTE Corp. ZTE Corp. was …

Hearsay — Rule 801(d)(2) — Employee Must Still Be Employed But Needn’t Be in Same Position When Making Admission (Circuit Split — See Dissent, Note 4) — Irrelevance of 2011 Amendment

Weil v. Citizens Telecom Servs. Co., LLC, 2019 U.S. App. LEXIS 12666, 2019 WL 1891796 (9th Cir. April 29, 2019): Hearsay does not include statements offered ag ...

Weil v. Citizens Telecom Servs. Co., LLC, 2019 U.S. App. LEXIS 12666, 2019 WL 1891796 (9th Cir. April 29, 2019): Hearsay does not include statements offered against a party, made by that party's employee on a matter within the…

Text Authentication — Recipient’s Testimony + Alleged Sender’s Admission That They Texted and Inability to Deny That “These Messages Are True” — Printouts Admitted Absent Genuine Issue as to Accuracy

In re Parenting Of: T.P.D.C. v. Staat, 2019 MT 107N, 2019 Mont. LEXIS 167 (Mont. May 7, 2019) (non-precedential): [*P1] Pursuant to Sectio ...

In re Parenting Of: T.P.D.C. v. Staat, 2019 MT 107N, 2019 Mont. LEXIS 167 (Mont. May 7, 2019) (non-precedential): [*P1] Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion…

Commercial Litigation and Arbitration

Arbitration — By Signing NY Convention, Sovereign Waives Immunity from Enforcement in Other Signatory States, Per 28 U.S.C. §1605(a)(1) — No Waiver by Signing Int’l Agreement Not Mentioning Waiver — Waiver vs. Arb. Exceptions in §1605

Confidentiality of Litigation Docs—3 Standards: Rule 26(c), Common Law Right of Access, 1st Amendment — Judicial Records, Including Summary Judgment Exhibits, Presumptively Available under Common Law Rt. — Unclear If 1st Amend. Applies to SJ Exhs.

Privilege & Work Product Apply to Public Relations Firm — Log Must Show All Elements of Priv. — Detailed Discussion of Fiduciary Exception (Inapt in Securities Fraud Case), Waiver, Predominant Business v. Legal Purpose, Crime-Fraud

Arbitration — 2-Step Analysis: Whether (1) Parties Entered into Arb. Agreement, (2) If So, It Delegates to Arbitrator Issue of Arbitrability? — Whether Litigant Is Subrogated to Arb. Agmt. Is Step (1) Question — Schein Affects Step (2) Only

Rule 37(c)(1) Exclusion of Expert Testimony for Failure to Timely Disclose Expert Evidence “Falls in the Heartland of Case Management Decisions” and “Review Is Highly Deferential” (Good Quotes)

Supreme Court: Impossibility Preemption Based on Agency Unwillingness to Allow Action Required by State Law to Be Decided by Judge, Not Jury, Including Subsidiary Fact Questions

Testimony As to Authorship, Substance of Unadmitted Texts Allowed, Authenticated by Tone, Contents, Access to Sending Device — Best Evidence Not Addressed

Res Judicata: Federal Court Order Confirming Arbitration Award Has Same Preclusive Effect As Final Judgment, Which Is Determined by State Law in Diversity Case — Non-Party Parent Corp. Entitled to Same Preclusive Benefit as Wholly-Owned Subsidiary/Party

Hearsay — Rule 801(d)(2) — Employee Must Still Be Employed But Needn’t Be in Same Position When Making Admission (Circuit Split — See Dissent, Note 4) — Irrelevance of 2011 Amendment

Text Authentication — Recipient’s Testimony + Alleged Sender’s Admission That They Texted and Inability to Deny That “These Messages Are True” — Printouts Admitted Absent Genuine Issue as to Accuracy

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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