Complex Lit Blog

Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1] Defendant, age 21 at the time, be ...

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1] Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury…

The 7 Most Important Developments in Federal Civil Procedure in 2018

1. Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E)) 2. A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding the prior alternative of dismissing in federal court and refiling in state court f ...

Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): ...

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): Drug manufacturer Warner Chilcott Limited pulled one of its products — Asacol…

The Court of Federal Claims Lacks Jurisdication over RICO Claims

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1. Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act,

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1. Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964(c). Suppl. J.A. at 2. The Claims Court held that…

Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and to deny Carr’s Motion to Amend, Stay, or Vacate the district judge’s ...

Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Client’s Carrier at Its Rates ≠ Agreement to Rates — Seeking Indemnification Waives Privilege as to Bills & Commc’ns Going to Fee Reasonableness

Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Carrier at Its Rates ≠ Agreement to Rates — By Seeking Indemnification ,Privilege Waived as to Bills & Communications Going to Reasonableness of Fees

“Costs” in Rule 41(d)—Which Allows Award If Plaintiff Dismissed Prior Action Asserting Same Claim against Same Def.—Includes Attorneys’ Fees (3-Way Cir. Split) — Derivative Action Rules Apply to LLCs, to Defense & Not Only If Board Malfeasance

Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals ...

Horowitz v. 148 South Emerson Assocs. LLC, 888 F.3d 13 (2d Cir. 2018): : Plaintiff-Appellant Montauk U.S.A., LLC ("Montauk") appeals from (i) the district court's dismissal without prejudice of its Lanham Act claims and motion for preliminary…

Rule 37 Sanctions: It Is No Defense to Discovery Duties and Orders That Motion to Dismiss Is Pending — Violation of Order Caused by Negligence, Misunderstanding or Inability Won’t Justify Default or Dismissal (Good Quote)

Taser Int'l, Inc. v. Phazzer Elecs., Inc., 2018 U.S. App. LEXIS 30197 (Fed. Cir. Oct. 26, 2017): Phazzer Electronics, Inc. ("Phazzer") appeals from the district court' ...

Taser Int'l, Inc. v. Phazzer Elecs., Inc., 2018 U.S. App. LEXIS 30197 (Fed. Cir. Oct. 26, 2017): Phazzer Electronics, Inc. ("Phazzer") appeals from the district court's order granting Taser International, Inc.'s ("Taser") motion for sanctions. Taser Int'l, Inc. v. …

Inherent Power Sanctions: Discovery Rules Inadequate Where Party Not Only Failed to Produce But Made Affirmative Misrepresentations to Conceal Document’s Existence — $257,000 Awarded Apply Goodyear’s But-For Causation Test

Goldstein v. Bavelis (In re Bavelis), 2018 U.S. App. LEXIS 32632 (6th Cir. Nov. 19, 2018): Quick Capital, a company owned by Ted Doukas, held a promissory note signed by George ...

Goldstein v. Bavelis (In re Bavelis), 2018 U.S. App. LEXIS 32632 (6th Cir. Nov. 19, 2018): Quick Capital, a company owned by Ted Doukas, held a promissory note signed by George Bavelis, a debtor in Chapter 11 bankruptcy. Quick …

Rule 37 Sanctions: “Substantially Justified” Means “Not Justified to a High Degree” But “to a Degree That Could Satisfy a Reasonable Person” (Good Quote) — If Refusal to Admit RFA Is Substantially Justified, Court Lacks Power to Award Fees

In re Rael, 2018 U.S. App. LEXIS 34483 (10th Cir. Dec. 7, 2018): ORDER AND JUDGMENT* This appeal involve ...

In re Rael, 2018 U.S. App. LEXIS 34483 (10th Cir. Dec. 7, 2018): ORDER AND JUDGMENT* This appeal involves several orders entered in the bankruptcy proceedings stemming from the joint petition for bankruptcy relief filed by Robert and…

Commercial Litigation and Arbitration

Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

The 7 Most Important Developments in Federal Civil Procedure in 2018

Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

The Court of Federal Claims Lacks Jurisdication over RICO Claims

Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

Summary Judgment Generally Inapt in Contract Case unless Language Is Unambiguous — Sending Budget to Client’s Carrier at Its Rates ≠ Agreement to Rates — Seeking Indemnification Waives Privilege as to Bills & Commc’ns Going to Fee Reasonableness

“Costs” in Rule 41(d)—Which Allows Award If Plaintiff Dismissed Prior Action Asserting Same Claim against Same Def.—Includes Attorneys’ Fees (3-Way Cir. Split) — Derivative Action Rules Apply to LLCs, to Defense & Not Only If Board Malfeasance

Rule 37 Sanctions: It Is No Defense to Discovery Duties and Orders That Motion to Dismiss Is Pending — Violation of Order Caused by Negligence, Misunderstanding or Inability Won’t Justify Default or Dismissal (Good Quote)

Inherent Power Sanctions: Discovery Rules Inadequate Where Party Not Only Failed to Produce But Made Affirmative Misrepresentations to Conceal Document’s Existence — $257,000 Awarded Apply Goodyear’s But-For Causation Test

Rule 37 Sanctions: “Substantially Justified” Means “Not Justified to a High Degree” But “to a Degree That Could Satisfy a Reasonable Person” (Good Quote) — If Refusal to Admit RFA Is Substantially Justified, Court Lacks Power to Award Fees

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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