A Softer, Gentler Seventh Circuit Reconsiders “Substantial Compliance” under Rule 11

Those who practice regularly before the U.S. Court of Appeals for the Seventh Circuit know that the court has not been reluctant to punish a misbehaving lawyer.

So the court’s recent decision in Riffner v. PNC Bank, No. 15-2142 (7th Cir. Mar. 10, 2017), might come as a bit of a surprise. Unlike (apparently) all the other circuits that have considered the issue, the Seventh Circuit has long allowed “substantial compliance” with Rule 11’s requirement that the party seeking sanctions serve, but not file, its motion and wait 21 days before filing, to give the offending party a chance to back down.

In this case, however, the court, in an opinion written by Judge David Hamilton (joined by Chief Judge Diane Wood), while expressly declining to reconsider adherence to the court’s position on “substantial compliance,” reversed the district court’s imposition of sanctions because the letters that the moving party sent did not substantially comply with the rule.

Judge Richard Posner dissented from the majority opinion and accused his colleagues of being “enamored” with “legal technicalities” or of being “reluctant to punish misbehaving lawyers.”

Continue reading this entry

Seventh Circuit Explains Disclosure of Hybrid Witnesses under Fed. R. Civ. P. 26(a)(2)(C)

The Seventh Circuit’s recent decision in Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, No. 16-2675 (7th Cir. Feb. 17, 2017), written by Judge David Hamilton, is one for civil litigators to take note of. It appears to be the first time the Seventh Circuit has used Federal Rule of Civil Procedure 26(a)(2)(C). That subsection, which was part of the Rule’s 2010 amendments, governs the disclosures required for “hybrid witnesses”—that is, witnesses not retained or specifically employed to provide expert testimony, but who have personal knowledge and offer both fact- and expert-opinion testimony. (The court has mentioned Rule 26(a)(2)(C) previously, but never has applied it.)

Continue reading this entry

Waiting for Gorsuch: SCOTUS Kicks Important Class-Action Waiver Case to Next Term

Last week, the United States Supreme Court informed litigants in Epic Systems Corp. v. Lewis that it is pushing the case to its October 2017 term. The lawsuit, which rose up through the Western District of Wisconsin and the Seventh Circuit, presents the High Court with a chance to resolve a robust circuit split on the question whether mandatory arbitration clauses in employment contracts may contain class action waivers without running afoul of the National Labor Relations Act (NLRA). Last spring, the Seventh Circuit ruled that such clauses were unenforceable, deviating from rulings by the Second, Fifth, and Eighth Circuits, and prompting the Supreme Court to grant certiorari on January 13, 2017.

Continue reading this entry

Wisconsin Supreme Court Clarifies Required Assessment Methodology for Section 42 Housing

The Wisconsin Supreme Court overturned the city of Racine’s property tax assessments in Regency West Apartments LLC v. City of Racine, 2016 WI 99, clarifying in important respects the appropriate assessment methodology for I.R.C. § 42 low-income housing tax credit properties.  The court essentially rejected the trial court’s fact finding on the ground that the assessor’s opinions on which the lower court relied were based on legally faulty assessment methodologies. [Note: Foley & Lardner represented the property owner in this case.]

Continue reading this entry

Seventh Circuit Confirms that Parties Seeking Review of an Interlocutory Order Have 30 Days to Request a Rule 54(b) Judgment

The rule of 28 U.S.C. § 1291 limits the appealability of district court orders to “final decisions.” Although an order resolving fewer than all claims of all parties is not a final decision for purposes of appeal, Rule 54(b), Fed. R. Civ. P., permits district courts to make such orders appealable by expressly determining that “there is no just reason for delay.”

The Seventh Circuit recently held in King v. Newbold, No. 15-1302 (7th Cir. Jan. 12, 2017), that a Rule 54(b) motion was improperly granted because the motion was untimely made. The twist? The Federal Rules do not establish a deadline for filing a Rule 54(b) motion. The 30-day deadline that the Court invoked comes from one of its own decisions published in 1972.

Continue reading this entry