Gregory P. Josephhttp://www.josephnyc.com/blog/Observations about current developments bearing on complex litigation, U.S. and international arbitration, the Federal Rules, and occasionally state rules.en-usCopyright © 2007 Gregory P. Joseph Law Offices LLC. All rights reserved.Sat, 17 May 2008 08:21:36 +0100Sat, 17 May 2008 08:21:36 +0100Email Admissibility — Hearsay — Rules 807 (Catchall Exception) and 803(1) (Present Sense Impression)http://www.josephnyc.com/blog/?blogID=574The plaintiff in Trade Finance Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008), was suing for a commission. Plaintiff TRP’s entitlement to the commission depended on characterization of the deal that the defendant (AAR) entered into Northwest Airlines (NWA). The ...Sat, 17 May 2008 00:00:00 +0100Binding Effect of 30(b)(6) Deposition Testimony — Admission vs. Judicial Admission — Impact on Summary Judgment vs. at Trialhttp://www.josephnyc.com/blog/?blogID=573State Farm’s 30(b)(6) witness in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), Mr. Bowles, did nothing to prepare for his testimony other than meet with counsel. Accordingly, when questioned about the basis of certain claims asserted by ...Fri, 16 May 2008 00:00:00 +0100Sanctions — Experts — Misstatement of Fact in Expert Report as Potentially Outside Rule 11http://www.josephnyc.com/blog/?blogID=572Plaintiff’s expert in Vidalia Dock & Storage Co. v. Donald Engine Serv., 2008 U.S. Dist. LEXIS 32026 (W.D. La. April 17, 2008), made a misstatement of fact, asserting that the plaintiff owned a vessel (M/V CARLA J) that was owned by someone else. Plaintiff’s counsel and plaintiff were evidently...Thu, 15 May 2008 00:00:00 +0100Securities — SEC May Not Seek Monetary Penalties for Aiding and Abetting Violations of the Investment Advisers Act http://www.josephnyc.com/blog/?blogID=571In SEC v. Bolla, 2008 U.S. Dist. LEXIS 36401 (D.D.C. May 6, 2008), United States District Judge Colleen Kollar-Kotelly held that Section 209(e) of the Advisers Act, 15 U.S.C. § 80b-9(e), does not authorize the SEC to seek, and does not confer jurisdiction on the Court to impose, monetary penalties ...Wed, 14 May 2008 00:00:00 +0100Sale of Business as Spoliationhttp://www.josephnyc.com/blog/?blogID=570After the plaintiff filed suit in Centimark Corp. v. Pegnato & Pegnato Roof Mgmt., Inc., 2008 U.S. Dist. LEXIS 37057 (W.D. Pa. May 5, 2008), the corporate defendant filed for bankruptcy and the individual defendants arranged for the sale of all of the corporation's assets (a sale that was approved b...Tue, 13 May 2008 00:00:00 +0100Expert Report and Evidence Checklisthttp://www.josephnyc.com/blog/?blogID=569From Brawhaw v. Mariner Health Care, Inc., 2008 U.S. Dist. LEXIS 37884 (N.D. Miss. May 8, 2008): Fed. R. Civ. P. 26(a)(2) 1. Did the expert turn in an expert report? 2. Did the expert report contain: (a) a complete statement of all opinions? (b) the basis and reasons therefor? (c) the dat...Mon, 12 May 2008 00:00:00 +0100Rule 59 Motion for a New Trial — Criteria — Third Circuithttp://www.josephnyc.com/blog/?blogID=568From Smith v. Ciritella, 2008 U.S. Dist. LEXIS 36122 (D. Del. May 5, 2008): Federal Rule of Civil Procedure 59(a) provides that: [a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reaso...Sun, 11 May 2008 00:00:00 +0100Securities — Sanctions — Waiver of PSLRA’s Mandatory Sanctions Review Enforcedhttp://www.josephnyc.com/blog/?blogID=567The Private Securities Litigation Reform Act of 1995 re-introduced mandatory Rule 11 sanctions (if a violation is found), just two years after the 1993 amendment to Rule 11 made sanctions discretionary. To enforce this mandate, the statute also dictates that the Court must undertake a Rule 11 revie...Sat, 10 May 2008 00:00:00 +0100LLC Treated Like Corporation, Not Partnership, for Privilege Purposes — Case Splithttp://www.josephnyc.com/blog/?blogID=566A former principal in an LLC (Montgomery) sued the entity (eTreppid) and another principal (Treppid), inter alia, for misappropriation of intellectual property in Montgomery v. eTreppid Techs., 2008 U.S. Dist. LEXIS 35561 (D. Nev. April 18, 2008). In seeking access to attorney-client privileged com...Fri, 09 May 2008 00:00:00 +0100RICO — Governmental Entity Does Not Suffer Injury to Business or Property Simply Because Employee Was Bribedhttp://www.josephnyc.com/blog/?blogID=565The crux of the complaint in Township of Marlboro v. Scanapieco, 2008 U.S. Dist. LEXIS 33386 (D.N.J. April 23, 2008), was bribery of municipal employees in exchange for land use approvals necessary for the construction of certain land developments. The injury allegations, as summarized by the Cour...Thu, 08 May 2008 00:00:00 +0100