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

Is Pretrial Discovery of Sensitive Financial Information Relevant Only to Punitive Damages Appropriate or Premature, at Least Prior to Summary Judgment? Case Law Split

Bakhit v. Safety Marking, Inc., 2014 U.S. Dist. LEXIS 125684 (D. Conn. Sept. 9, 2014): The Court agrees that the information sought is generally discoverable to support a punitive damages claim. [*4]  Connors v. Pinkertons, Inc., No. 3:98 CV 699 (GLG), 1999 WL 66107, at *2 (D. Conn. Feb. 4, 1999). However, &q ...
Bakhit v. Safety Marking, Inc., 2014 U.S. Dist. LEXIS 125684 (D. Conn. Sept. 9, 2014): The Court agrees that the information sought is generally discoverable to support a punitive damages claim. [*4]  Connors v. Pinkertons, Inc., No. 3:98 CV 699…
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Experts — Failure to Consider Compliance with Standards, Test, or ID Scientific Principles = Analytical Gap — Court Avoids Credibility in Daubert Inquiry — Must Make Specific Factual Findings as Gatekeeper

Heer v. Costco Wholesale Corp., 2014 U.S. App. LEXIS 20863 (10th Cir. Oct. 29, 2014): A. Exclusion of Expert Testimony Ms. Heer argues that, in granting Defendants' motion [*11]  to exclude Mr. Stolz's testimony, the district court applied the wrong legal standard by failing t ...
Heer v. Costco Wholesale Corp., 2014 U.S. App. LEXIS 20863 (10th Cir. Oct. 29, 2014): A. Exclusion of Expert Testimony Ms. Heer argues that, in granting Defendants' motion [*11]  to exclude Mr. Stolz's testimony, the district court applied the wrong…
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Spoliation — Bad Faith Required for Dismissal Sanction (Eighth Circuit) — Failure to Request Lesser Sanctions Precludes Later Argument They Should Have Been Granted

Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved to reopen the case because she learned that Clink possibly had f ...
Bisges v. Gargula (In re Clink), 2014 U.S. App. LEXIS 20177 (8th Cir. Oct. 21, 2014): I. Background Bisges represented Anne Clink in her [*2]  Chapter 7 bankruptcy case. After the case was closed, United States Trustee Nancy Gargula moved …
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Judicial Notice of Internet Evidence — Court Records from Westlaw — Westlaw as a Reliable Source

Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner who fails to allege that he or ...
Pickens v. Klee, 2014 U.S. Dist. LEXIS 163390 (E.D. Mich. Nov. 21, 2014): A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155,…
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Interlocutory Appeals — Rule 54(b): Separateness Requirement — Fugitive Disentitlement Doctrine Does Not Apply to Civil Litigant Refusing to Participate in Lawsuit: Judicial Wariness of Doctrine’s Civil Application — Bond on Appeal Is Optional

Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along with other co-conspir ...
Niemi v. Lasshofer, 2014 U.S. App. LEXIS 21365 (10th Cir. Nov. 4, 2014): John Niemi, Robert Naegele, III, and Jesper Parnevik ("Plaintiffs" or "Appellees") claim that Erwin Lasshofer and three companies affiliated with him (the "Lasshofer Defendants" or "Appellants"), along…
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Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Still-Extent Official Form)

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies to affirmative defenses pled in an answer. William M. Jan ...
Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies …
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Class Actions — Circuit Split as to Whether Offer of Complete Relief to Named Plaintiff before Certification Motion Filed Moots Case — Split as to Whether Plaintiff May Immediately File Unsupported Certification Motion to Avoid Issue

Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1] against John Hancock Financial Network, Inc., John Hancock Life & He ...
Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1]…
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Email/Text — Difficulties in Satisfying the Present Sense Impression, Excited Utterance, State of Mind and Business Records Exceptions — In Limine Motion to Exclude Granted Only If Evidence Is Clearly Inadmissible on All Potential Grounds: Good Quote

Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014): This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence.... I.  ANALYSIS Because a ruling on a motion < ...
Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014): This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence…. I.  ANALYSIS Because a …
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Experts — New Opinion Based on Info Known at Time of Original Report Not Supplemental Report — If Facts Unchanged, 2d Report = Impermissible New Opinion — Preclusion Is Drastic, Imposed Rarely (Good Quotes)

  Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness will express and the basis and reasons for ...
Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness…
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28 U.S.C. § 1446(c)’s New Exception Allowing Removal after One Year If Plaintiff Acted in Bad Faith — Two Part Test — Reasons Plaintiffs Prefer State to Federal Court

Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, 2014. The primary issue is whether the Court should grant the Motion ...
Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, …
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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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