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

Daubert — No Hearing Necessary Where Court Has Available Testimony from Same Witness on Nearly Identical Issue from Another Proceeding — No Need to Renew Objection at Trial If Court Issues Definitive Ruling on In Limine Motion

United States v. Rodriguez, 2015 U.S. App. LEXIS 840 (11th Cir. Jan. 21, 2015): We have previously held that the overruling of a motion in limine does not preserve an evidentiary issue for appeal. United States v. Rutkowski, 814 F.2d 594, 598 (11th Cir. 1987) (per curiam). Rather, an objection at trial is req ...
United States v. Rodriguez, 2015 U.S. App. LEXIS 840 (11th Cir. Jan. 21, 2015): We have previously held that the overruling of a motion in limine does not preserve an evidentiary issue for appeal. United States v. Rutkowski, 814 F.2d…
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Appeals: To What Extent Is Fed. R. Civ. P. 60(b)(6) Available As a Means of Providing Relief to Someone Who Missed the Appellate Deadlines in Rules 4(a)(1) and 4(a)(5) — I.e., As an End Around Bowles? Circuit Split

Tanner v. Yukins, 2015 U.S. App. LEXIS 837 (6th Cir. Jan. 20, 2015): The Federal Rules of Appellate Procedure establish the deadlines that govern filings in this court. See Fed R. App. P. 1(a)(1). When a party is properly notified of a judgment, Rule 4(a)(1)(A) provides the party with 30 days to appe ...
Tanner v. Yukins, 2015 U.S. App. LEXIS 837 (6th Cir. Jan. 20, 2015): The Federal Rules of Appellate Procedure establish the deadlines that govern filings in this court. See Fed R. App. P. 1(a)(1). When a party is properly notified …
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Even If Court Generally Must Dismiss, Not Stay, an Action upon Compelling Arbitration (There Is a Circuit Split on the Dismiss-vs.-Stay Question), When Arbitration Is Compelled to Determine Arbitrability, Then Only a Stay Is Apt

Mercadante v. XE Servs., LLC, 2015 U.S. Dist. LEXIS 4686 (D.D.C. Jan. 15, 2015): The Court need not resolve the question of whether the Court would dismiss the case if it were compelling arbitration on all of the substantive claims in this action. Compare White v. Four Seasons Hotels & Resorts, 999 F. Supp. 2d 250, 261-62 (D.D.C. ...
Mercadante v. XE Servs., LLC, 2015 U.S. Dist. LEXIS 4686 (D.D.C. Jan. 15, 2015): The Court need not resolve the question of whether the Court would dismiss the case if it were compelling arbitration on all of the substantive claims…
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On Rule 60(b)(4) Motion to Vacate Default Judgment for Improper Service, Who Bears Burden of Proving/Disproving Effective Service? Circuit Split

Myers v. Moore, 2014 U.S. Dist. LEXIS 176409  (E.D. Pa. Dec. 22, 2014): III.  RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) because they were not prop ...
Myers v. Moore, 2014 U.S. Dist. LEXIS 176409  (E.D. Pa. Dec. 22, 2014): III.  RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) …
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Texts Insufficiently Authenticated by Proof Cell Was Found in Common Area of Apartment Defendant Temporarily Lived in and Texts Contained His First Name — Circumstantial Evidence Inadequate to Permit Jury to Link Cell to Him

People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015):    [*P1]  After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and was sentenced to eight years in prison.
People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015):    [*P1]  After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) …
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Sham Affidavit Rule — Remedy: Strike Only Those Portions of Affidavit That Contradict Prior Deposition Testimony

Maisha v. Univ. of NC, 2015 U.S. Dist. LEXIS 4671 (M.D.N.C. Jan. 15, 2015): A party may not create a genuine issue of material fact by "filing [*2]  a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); ...
Maisha v. Univ. of NC, 2015 U.S. Dist. LEXIS 4671 (M.D.N.C. Jan. 15, 2015): A party may not create a genuine issue of material fact by "filing [*2]  a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland…
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Sanctions: Spoliation Motion = Nondispositive Pretrial Matter Properly before Magistrate Judge for Decision — Failure to Appeal Decision to District Court Bars Further Review

McCann v. Kennedy Univ. Hosp., Inc., 2014 U.S. App. LEXIS 23974 (3d Cir. Dec. 19, 2014):  McCann filed suit pro se in the United States District Court for the District of New Jersey, alleging violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd(a), by the hospital's ...
McCann v. Kennedy Univ. Hosp., Inc., 2014 U.S. App. LEXIS 23974 (3d Cir. Dec. 19, 2014):  McCann filed suit pro se in the United States District Court for the District of New Jersey, alleging violations of the Emergency Medical Treatment…
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Experts — Compelling Testimony from Unretained Experts — Five Factors

In re World Trade Center Lower Manhattan Disaster Site Litig., 2015 U.S. Dist. LEXIS 5045 (S.D.N.Y. Jan. 15, 2015): A. Power of Court to Compel Non-Retained Expert Witnesses Whether to compel a non-retained expert witness to produce documents [*109]  or testify at a deposition is within the sound disc ...
In re World Trade Center Lower Manhattan Disaster Site Litig., 2015 U.S. Dist. LEXIS 5045 (S.D.N.Y. Jan. 15, 2015): A. Power of Court to Compel Non-Retained Expert Witnesses Whether to compel a non-retained expert witness to produce documents [*109]  or …
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Breadth of Court’s Discretion in Deciding Whether to Adjourn Trial until Party Can Make Personal Appearance — Both Arbitrariness and Prejudice Must Be Shown to Reverse

Koch v. Pechota, 2015 U.S. App. LEXIS 175 (2d Cir. Jan. 7, 2015): "A party's demand for an adjournment of a civil trial until the party can make a personal [*2]  appearance is entrusted to the sound discretion of the trial judge." Payne v. Jones, 711 F.3d 85, 90-91 (2d Cir. 2013) (internal quot ...
Koch v. Pechota, 2015 U.S. App. LEXIS 175 (2d Cir. Jan. 7, 2015): "A party's demand for an adjournment of a civil trial until the party can make a personal [*2]  appearance is entrusted to the sound discretion of the …
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Rule 806 Doesn’t Allow a Party-Declarant to Attack Her Own Credibility with Hearsay — Plain Error Isn’t Synonymous with Obvious Error (Good Quote) — No Need for Expert If Lay Person Is Equally Able to Draw Conclusion

United States v. Tsoa, 2014 U.S. App. LEXIS 21590 (4th Cir. Nov. 12, 2014):   Ging-Hwang Tsoa was convicted after a jury trial of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2012), and two counts of bank fraud, in violation of 18 U.S.C. §§ 2, 1344 (2012), and wa ...
United States v. Tsoa, 2014 U.S. App. LEXIS 21590 (4th Cir. Nov. 12, 2014):   Ging-Hwang Tsoa was convicted after a jury trial of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2012),…
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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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