New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

February 4, 2014

2010 Expert Amendments — 9th Circuit Joins 10th and 11th: Only Draft Expert Reports and Communications with Counsel Are Protected — Special Salience of Advisory Committee Notes in Construing Rules — Implicit 1782 Ruling

Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather evidence for international arbitration proceedings): Chevron Corporation and two of its expert witn ...
Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather …
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Recent Articles

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Electronic Spoliation Sanctions: The “Intent to Deprive” Standard in Rule 37(e)(2) Is The Equivalent of Bad Faith in Other Spoliation Contexts — Bad Faith Generally Means Destruction For The Purpose Of Hiding Adverse Evidence — Mere Negligence Is Insufficient Because It Does Not Sustain An Inference of Consciousness of a Weak Case

Sanctions and Attorney-Client Privilege: Sham (Objectively Baseless, Bad Faith) Litigation for Antitrust Purposes Triggers Crime-Fraud Exception — Not All Frivolous Litigation Falls within Crime-Fraud Exception (But Some Sanctionable Behavior Clearly Does)

Rule 37(c)(1) Sanctions — Exclusion of Retained Expert for Failure to Provide 26(a)(2)(B) Report — Factors (Sixth Circuit) — The Importance of The Evidence Factor Cuts Both Ways: “The More Important The Proof, The Greater The Effect Of Preclusion, But Also The Greater The Harm In Tardy Disclosure”

(1) Bankruptcy Courts Have Only Civil Contempt Powers; (2) All Monetary Contempt Sanctions Must Be Civil — Designed Either to Coerce Compliance Or Compensate a Party for the Contemnor’s Violation, and Not Have As A Primary Purpose to Vindicate the Authority of the Bankruptcy Court Or Punish the Contemnor

Rule 11 and Inherent Power Sanctions: Vexatious Litigant Injunction (VLI) Broadened to Bar Any Further Filings in Issuing District Court Due to Violation of Narrower VLI And Failure to Pay Monetary Sanctions

(1) Order to Show Cause Why FRAP 38 Sanctions Should Not Issue Against Recidivist Filer of Frivolous Claims for Filing Brief Consisting Mostly of Unsubstantiated Accusations; (2) Vexatious Litigant Injunction to Issue If Any Monetary Penalty Not Paid Promptly

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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