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

Complex Lit Blog

Removal — Does §1447(c) Allow Dismissal If Remand Is Futile? (Circuit Split) — Class Counsel Are Federal Officers in Sending Class Notice, May Remove State Class Rep’s Attempt to Enjoin It — Case Dismissed on Merits Though No Subj. Matter Jurisd.

Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1   1   The Court enters this Amended [*2]  Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order to ...
Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1   1   The Court enters this Amended [*2]  Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order…
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Appeals — Denial of Leave to Amend Reviewed De Novo If on Futility Grounds, Otherwise for Abuse of Discretion

HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4]  a district court's denial of a motion for leave to amend a complaint for an abuse of discretion. City of Clinton v. Pilgrim's Pride ...
HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4]  a district court's denial of a motion for leave to amend a complaint for an abuse …
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Claim-Splitting Barred by Res Judicata — Denial of Leave to Amend, Even on Timeliness Grounds = Adjudication on the Merits of the Claim Sought to Be Brought — Federal Court May Stay or Dismiss Duplicative Suit, But Doesn’t Have to

Elmhurst Lincoln-Mercury, Inc., Employees’ 401(k) Profit Sharing Plan & Trust v. Mears, 2016 U.S. Dist. LEXIS 115295 (N.D. Ill. Aug. 29, 2016): On February 18, 2016, Elmhurst Lincoln-Mercury, Inc. Employees 401(k) Profit Sharing Plan and Trust ("the Plan"), by its acting trustee, Thomas Potts, Jr., filed this ERISA and neg ...
Elmhurst Lincoln-Mercury, Inc., Employees’ 401(k) Profit Sharing Plan & Trust v. Mears, 2016 U.S. Dist. LEXIS 115295 (N.D. Ill. Aug. 29, 2016): On February 18, 2016, Elmhurst Lincoln-Mercury, Inc. Employees 401(k) Profit Sharing Plan and Trust ("the Plan"), by its…
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RICO Claim Survives Death (Caselaw Split) — Failure of Evidence at Trial (Continuity) Can’t Be Cured by Looking at Summary Judgment Proceedings — Only Trial Evidence Matters — Good Quote on Modern Litigation in Which SJ, Not Trial, Is Focus

Malvino v. Delluniversita, 2016 U.S. App. LEXIS 18952 (5th Cir. Oct. 20, 2016): As she approached retirement, Bonnie Pereida spent hundreds of thousands of dollars on rare coins. She thought the coins would be a good hedge against inflation. After she passed away, an appraisal revealed that her coin collection included a counterfeit c ...
Malvino v. Delluniversita, 2016 U.S. App. LEXIS 18952 (5th Cir. Oct. 20, 2016): As she approached retirement, Bonnie Pereida spent hundreds of thousands of dollars on rare coins. She thought the coins would be a good hedge against inflation. After…
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§ 1927 & Inherent Power Sanctions Require Conduct (1) Entirely without Color (2) Motivated by Improper Purpose — $180,000 in Attorney’s Fees for Amended Complaint Containing Uncorrected, Unsupported Allegations and Concealing Evidence

Rabin v. Dow Jones & Co., 2016 U.S. App. LEXIS 19227 (2d Cir. Oct. 25, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Plaintiff I. Stephen Rabin, a lawyer, and Raymond A ...
Rabin v. Dow Jones & Co., 2016 U.S. App. LEXIS 19227 (2d Cir. Oct. 25, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Plaintiff I.…
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Non-Party’s Emails to Party Not Hearsay When Admitted to Provide Context for Party’s Emails — Providing Means for Suicide to Potentially Adverse Witness Triggers 804(b)(6) Forfeiture of Hearsay Objection to Decedent’s Emails

United States v. Kilmartin, 2016 U.S. Dist. LEXIS 135299 (D. Me. Sept. 30, 2016): With trial looming, Sidney Kilmartin moves to preclude the Government from introducing email statements made by Andrew Denton, as well as expert testimony of toxicologist Dr. Cynthia Morris-Kukoski. The Court rules that the email stateme ...
United States v. Kilmartin, 2016 U.S. Dist. LEXIS 135299 (D. Me. Sept. 30, 2016): With trial looming, Sidney Kilmartin moves to preclude the Government from introducing email statements made by Andrew Denton, as well as expert testimony of toxicologist Dr. …
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Rule 37 Sanctions: 4 Purposes — Rule 30 Sanctions for Deposition Misconduct: Asking Defendant If He Wants to Apologize, Repeating It 6 Times, Demanding Yes Or No Answer, Arguing with Witness — CLE Ordered

Tajonera v. Black Elk Energy Offshore Operations, 2015 U.S. Dist. LEXIS 181998 (E.D. La. Sept. 30, 2015): This matter is before the Court on remand from the District Judge. (Rec. doc. 686). It involves an earlier Order and Reasons issued by this Court in which sanctions were assessed against counsel for Grand Isle Shipyards ("GIS ...
Tajonera v. Black Elk Energy Offshore Operations, 2015 U.S. Dist. LEXIS 181998 (E.D. La. Sept. 30, 2015): This matter is before the Court on remand from the District Judge. (Rec. doc. 686). It involves an earlier Order and Reasons issued…
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Judicial Notice of Internet Evidence — Opponent’s Filings with Gov’t Agency Noticed for Fact of Filing, Not for Contents, on 12(b)(6) Motion — 12(f) Motion to Strike Disfavored, Should Be Denied unless Allegations Have No Conceivable Relevance

Morton & Bassett, LLC v. Organic Spices, Inc., 2016 U.S. Dist. LEXIS 120092 (N.D. Cal. Sept. 6, 2016): Before the Court is the motion to dismiss filed by Defendant-Counterclaimant Organic Spices, Inc. ("Defendant"). Dkt. No. 40 ("Mot."). Defendant moves to dismiss Plaintiff Morton & Bassett, LLC's ("Plaint ...
Morton & Bassett, LLC v. Organic Spices, Inc., 2016 U.S. Dist. LEXIS 120092 (N.D. Cal. Sept. 6, 2016): Before the Court is the motion to dismiss filed by Defendant-Counterclaimant Organic Spices, Inc. ("Defendant"). Dkt. No. 40 ("Mot."). Defendant moves to…
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Experts — Opinion on Credibility of Persons Barred, on Credibility of Documents Permitted — Witnesses May Not Testify as to the Credibility of Other Witnesses (Good Quote)

FHFA v. Nomura Holding Am., Inc., 2015 WL 353929 (S.D.N.Y. Jan. 28, 2015): *1 This Opinion addresses the defendants’1 motion to exclude expert testimony to be offered at trial on behalf of plaintiff Federal Housing Fina ...
FHFA v. Nomura Holding Am., Inc., 2015 WL 353929 (S.D.N.Y. Jan. 28, 2015): *1 This Opinion addresses the defendants’1 motion to exclude expert testimony to be offered at trial on behalf of plaintiff Federal Housing Finance Agency (“FHFA”) by …
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Website Evidence — 21st Century Image of Ancient Document on Government Website = Ancient Document — Judicial Notice OK Where Gov’t Sponsorship Can Be Verified by Visiting Site

Cave Buttes, LLC v. Comm’r of Internal Revenue, 2016 U.S. Tax Ct. LEXIS 27; 147 T.C. No. 10 (U.S. Tax Court Sept. 20, 2016): Cave Buttes, LLC owned 11 acres on a hill that in the distance overlooked downtown Phoenix. But up close it overlooked a dam owned by the Maricopa County Flood Control District. The District staff did not want ...
Cave Buttes, LLC v. Comm’r of Internal Revenue, 2016 U.S. Tax Ct. LEXIS 27; 147 T.C. No. 10 (U.S. Tax Court Sept. 20, 2016): Cave Buttes, LLC owned 11 acres on a hill that in the distance overlooked downtown Phoenix.…
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Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

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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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