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.
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Spoliation — Not Error to Decline Spoliation Instruction and Instead Permit Aggrieved Party to Argue That Missing Records Would Have Been Favorable — Violation of Regulation, As Opposed to Statute, ≠ Negligence Per Se

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Mann v. Redman Van & Storage Co., Inc., 2013 U.S. App. LEXIS 21047 (9th Cir. Oct. 17, 2013):

The Manns, Plaintiffs-Appellants, appeal from a district court's denial of their Rule 59 motion for a new trial following a jury verdict in Defendant-Appellee Redman's favor. The Manns and defendant Redman's employee, Anderson, were involved in an accident in 2008. Anderson was driving a semi-truck on a two-lane highway. He slowed to make a left turn as the Manns attempted to pass Anderson's truck in the left lane. The two vehicles collided. The Manns brought suit against Anderson's trucking company alleging that the company's negligence had caused them serious injury. At trial they presented a variety of theories of negligence, including arguments that 1) Anderson's trailer's pigtail cables had detached and therefore the turn signal was not working at the time of the accident, in violation of Montana law, and 2) Redman had violated federal record-keeping, training, and testing regulations relating to Anderson. The jury found Redman not negligent. The Manns moved for a new trial, arguing that the verdict was against the weight of the evidence and that the district court improperly instructed the jury. The district court denied the motion, and the Manns appealed.

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The district court also did not abuse its discretion in refusing to instruct the jury that violation of a federal regulation constitutes negligence per se. This case is in diversity   and is governed by Montana tort law. The Montana Supreme Court has held that violation of a statute can constitute negligence per se, but violation of a regulation cannot. Harwood v. Glacier Elec. Coop., 949 P.2d 651, 656 (Mont. 1997). Appellants provide no compelling reason to disregard this clear statement of Montana tort law.

Finally, the district court did not abuse its discretion in refusing to give a spoliation instruction. Plaintiffs argued at trial that Redman had refused to turn over evidence of Anderson's training, citation record, and drug test(s). This was in the alternative to plaintiffs' primary argument that Redman failed to provide adequate training or keep records. The district court declined to give either of plaintiffs' proposed spoliation instructions, finding them confusing and concluding that either instruction would be an unfair comment on the evidence. The district court allowed plaintiffs to argue that the jury should presume the evidence in the missing records was favorable to plaintiffs. Given the wide latitude district courts have in instructing the jury, the district court did not abuse its discretion. See Glover v. BIC Corp., 6 F.3d 1318, 1327 (9th Cir. 1993).

 

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

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Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

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(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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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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