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

Judicial Notice of Internet Evidence — A Federal District Court Is Permitted to Take Judicial Notice of Another Court’s Website

United States v. Newsome, 2014 U.S. Dist. LEXIS 150659 (S.D. Ohio Oct. 23, 2014): Newsome's second objection is to the Report's reference to the Montgomery County Clerk of Court's website for the indictment in Newsome's felonious assault case. He says this is a "clear and obvious error," but he doesn't sa ...
United States v. Newsome, 2014 U.S. Dist. LEXIS 150659 (S.D. Ohio Oct. 23, 2014): Newsome's second objection is to the Report's reference to the Montgomery County Clerk of Court's website for the indictment in Newsome's felonious assault case. He says…
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Federal Jurisdiction — Grable — If Success of Claim Only Partially Depends on Federal Law, or Does So Only in the Alternative, No JD — If Claims Contradicted by Federal Rules with Force of Law, Then JD But Also Preemption Defense

Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 2014 U.S. App. LEXIS 21362 (3d Cir. Nov. 10, 2014): After the District Court denied Plaintiffs' motion to remand this case to New Jersey state court, we granted their petition for an interlocutory appeal. The issue before us is whether there is federal-question jurisdiction over Plai ...
Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 2014 U.S. App. LEXIS 21362 (3d Cir. Nov. 10, 2014): After the District Court denied Plaintiffs' motion to remand this case to New Jersey state court, we granted their petition for…
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Spoliation — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra discovery costs caused by spoliation, including the cost of the sanctions motion. ...
Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra …
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Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying his motion for sanctions. See Barksdale v. ...
Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying…
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Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). In assessing the motion to compel arbitration itself, we apply t ...
Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228…
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Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014):  First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely on it when identifying unknown pills, the prosecu ...
People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014):  First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely …
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Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet   Be honest, be clear, be done with it. As columnists know, a word limit ...
From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet   Be honest, be clear, be done with it. As columnists know, a word limit focuses the mind and helps the reader. Lehman Brothers’ 2007 annual report…
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Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or f ...
Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails…
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Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge the suspension order are meritorious, we affirm. I. Th ...
In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge…
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Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1.  The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in the Mondrian Opinion, American Pipe tolling suspends the app ...
In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1.  The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in…
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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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