Blog Entries
Observations about current developments bearing on complex litigation, U.S. and international arbitration, the Federal Rules, and occasionally state rules.
RSS2009 Oct
31 Oct 2009
FSIA — Expropriation Exception — Foreign State Defendant Need Not Be the State that Wrongfully Expropriated — Foreign Exhaustion Discretionary — Commercial Activity Includes Ads, Press Releases
30 Oct 2009
Alien Tort Statute — Sosa Does Not Incorporate Customary International Law, Wholesale, into ATS; RICO — § 1962(b) Elements
29 Oct 2009
Inappropriate for Expert to Opine as to State of Mind, Summarize Documents with a “Tilt” or Offer Legal Conclusions — But Testimony as to the Reasonableness of a Party’s Behavior May Be Permissible
28 Oct 2009
Multidistrict Litigation — When Transferee (MDL) Court May Overturn Decision of Transferor (Caselaw Split) — Mandamus to Review Transferee Court’s Refusal to Reconsider Decision of Transferor
27 Oct 2009
“Excusable Neglect” within Federal Rule of Civil Procedure 6(b) — Unawareness of ECF Message
26 Oct 2009
Arbitration — Generic Choice of Law Provision Does Not Opt Out of Federal Arbitration Act and Permit Expanded Appellate Review Under State Law
25 Oct 2009
D.C. Circuit Declines to Decide whether Sua Sponte Sanctions May Issue Only in Circumstances “Akin to Contempt” — Lingering Circuit Split
24 Oct 2009
RICO — Whistleblower’s Firing Not Caused by RICO Violations about Which He Blew the Whistle
23 Oct 2009
Mere Request in Brief for Leave to Amend, without Motion, Justifies Denial — As Does Subsequent Failure to File Proposed Amendment in District Court
22 Oct 2009
Securities — No First Amendment or N.Y. Times v. Sullivan Protections for Allegedly Fraudulent Statements
21 Oct 2009
Experts and Summary Judgment -- Competing Threads of Decision
20 Oct 2009
“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege
19 Oct 2009
Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham
18 Oct 2009
Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin
17 Oct 2009
Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502
16 Oct 2009
Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury
15 Oct 2009
Trust 1 Is Not Collaterally Estopped by Judgment Against Trust 2 — Even Though They Share the Same Testators, Counsel and a Majority of Trustees — Given the Supreme Court’s Limitations on the Doctrine of “Virtual Representation”
14 Oct 2009
SLUSA Removal ≠ Complete Preemption — Removal Requires Only Consent of, Not Signatures from, All Defendants (Circuit Split) — After Dismissing SLUSA-Precluded Claim, Remand Appropriate — Quasi-Appraisal — Good Quote
13 Oct 2009
Michigan Issues Model Jury Instructions Prohibiting Jurors from Using Computers or PDAs to Search for Information About the Case
12 Oct 2009
Protective / Confidentiality Orders — Factors Governing In-House Counsel’s Access to Highly Confidential Trade Secrets Disclosed in Discovery
11 Oct 2009
Jury Trials in the Internet Era
10 Oct 2009
Evidence Drawn from Corporate Defendant’s Website Excluded
09 Oct 2009
Summary Judgment Granted to Plaintiff on Champerty Claim — Expert Opinion as to Law Barred
08 Oct 2009
Sanctions — Refusal to Hold Law Firm Vicariously Liable Upheld — No Interest on Award Despite Seven Year Delay in Issuing Sanctions Where Interest Not Requested in Motion
07 Oct 2009
Spoliation — Bribery and Intimidation of Witness by Third Party Is Spoliation If Attributable to Party, and Evidence Not Precluded by Rule 404(b)
06 Oct 2009
RICO — § 1962(b) Requirements — Inadequacy of 18 U.S.C. § 1346, Alone, as a Predicate Act
05 Oct 2009
Email Authentication — Recipient’s Testimony Sufficient — No Rule 37(c)(1) Prejudice from 26(a)(1) Nondisclosure of Person Actually Deposed
04 Oct 2009
§ 1404(a) Transfer of Venue — Location of Physical Evidence Remains a Relevant Consideration Even in the Age of Electronic Discovery
03 Oct 2009
Effect of Corporate Counsel's Failure to Document Upjohn Warning Is Privilege — Ninth Circuit Declines to Adopt Special Test for Assessing Whether Officer's Statement to Corporate Counsel Is Privileged and, If So, Whether Company May Waive It
02 Oct 2009
Does a Forum Selection Clause that Specifies a Particular County — But Not a Court System — Confer Jurisdiction on the Federal District Court that Encompasses, But Is Not Located in, the County? Circuit Split
01 Oct 2009