Blog Entries
Observations about current developments bearing on complex litigation, U.S. and international arbitration, the Federal Rules, and occasionally state rules.
RSS2009 Nov
30 Nov 2009
Intervention — Piggyback Standing — Intervenor Cannot Establish Piggyback Standing Where the Court Has Retained Jurisdiction to Enforce Its Order but There Is No Pending Dispute between the Parties
29 Nov 2009
RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity
28 Nov 2009
Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver
27 Nov 2009
Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split
26 Nov 2009
Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)
25 Nov 2009
Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit
24 Nov 2009
Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed
23 Nov 2009
RICO — Nationwide Jurisdiction — National vs. Local Contacts — Circuit Split
22 Nov 2009
Expert Report Consisting of Nothing More Than Conclusory Statements Supporting a Party’s Position Rejected — “Bad Faith” Insurance Expert Testimony Inadmissible (Caselaw Split)
21 Nov 2009
Judicial Estoppel Inappropriate Where Party Changes Position Due to Intervening Change in Law
20 Nov 2009
Rule 45 — Party May Object to Subpoena Served on Third Party Seeking Documents to Which Party Has Standing to Invoke Privilege or Personal Interest
19 Nov 2009
No Requirement that Loan be Made with Legal Tender to be Valid
18 Nov 2009
Absence of Any Methodology by Expert in “Metaphorical Associations” Warrants Exclusion under Daubert and Rule 702 — Expert Unnecessary Where Jury Is Capable of Comprehending Facts and Drawing Conclusions
17 Nov 2009
No Fraud If Recipient of Falsehoods Was Not Deceived — Fraud Action May Not Be Based on Misrepresentations of Law
16 Nov 2009
RICO Claim Barred by Res Judicata Because It Was Not Asserted in Prior State Court Action Arising Out of the Same Nucleus of Operative Facts and State Court Did Not Split the Cause of Action
15 Nov 2009
Constitutional Necessity (Ashwander) vs. Constitutional Avoidance
14 Nov 2009
The “Follow-the-Settlements” or “Follow-the-Fortunes” Doctrine in Reinsurance
13 Nov 2009
Authentication of Internet Evidence as Dependent on Purpose of Proffer and Source — Typical Web vs. Internet Archive
12 Nov 2009
Forum Selection Clause Providing that Parties “Submit” to Courts of One Jurisdiction, without More, Is Permissive, Not Mandatory — Failure to Attach a Copy of Served Process with Notice of Removal Does Not Warrant Remand Even If Not Timely Corrected
11 Nov 2009
Standards for Withdrawal of the Reference to the Bankruptcy Court — Permissive and Mandatory (11th Circuit)
10 Nov 2009
Authentication of MySpace Communications = Email Authentication; No Need for Testimony from Representative of MySpace
09 Nov 2009
Non-Collusive Naming of Citizen of Forum as Defendant Bars Removal Even If Defendant Is Not “Properly Joined and Served” Before Removal, Despite Text of 28 U.S.C. § 1441(b) — Caselaw Split
08 Nov 2009
Waiver of Attorney-Client Privilege by Use of Employer’s Email System by Employee and Employee's Lawyer — Four-Factor Test
07 Nov 2009
RICO — Association-in-Fact Enterprise Composed Exclusively of the Defendants Violates the Distinctiveness Requirement of § 1962(c)
06 Nov 2009
Violation of Internal Corporate Policy as Proof of Securities Fraud
05 Nov 2009
Sanctions -- Factors Militating for Reductions in Court-Ordered Attorneys' Fees
04 Nov 2009
Attorney-Client Privilege — Subject Matter Waiver — Discovery Allowed into Whether Client Authorized Counsel to Submit Memorandum and Exhibits to Prosecutors
03 Nov 2009
Twombly and Iqbal Apply to All Four Elements of Civil RICO Claim — Nexus Must Exist Between Racketeering Activity and Enterprise
02 Nov 2009
Supplemental Jurisdiction Appropriately Declined Over State Law Issue that Is Novel, Complex or a Matter of First Impression
01 Nov 2009