Lipsky v Commonwealth United Corp & Its Progeny – Still An Unresolved Question

The Touro Law Review recently published an article by EVW partners Lawrence Steckman and Joe Johnson. The article addresses the question of when a litigant, in making its own allegations, can draw on the allegations from a separate complaint.

It is a question famously addressed in the 1976 case Lipsky v. Commonwealth United Corp., a decision that has spawned progeny in the ensuing years which has left unanswered certain critical legal questions. The authors write…

“Some courts interpret Lipsky as articulating a bright line rule that precludes any reliance on other pleadings, on the theory that someone else’s allegations are just that, unproven assertions that have not been tested and factually confirmed, and thus, cannot support another’s pleading.

Others have interpreted Lipsky as not precluding such reliance, at least in some circumstances. Still others have stated views regarding their interpretation of Lipsky, but resolved the cases before them under Rule 11.

Recently, several courts, though mentioning Rule 11 and/or Lipsky, seem to be applying a standard rooted in the court’s assessment of the apparent “plausibility” of the information in the foreign pleading’s text. The cases are very much in conflict.” 

Attorneys Steckman and Johnson weigh in on this nuanced issue.