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

Experts / Daubert — The Abuse of Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): We review the district court's decision to admit or exclude the testimony of a party's expert witness for abuse of discretion. Kumho Tire, 526 U.S. at 152; Sigler, 532 F.3d at 478. As the Supreme Court explained in Kumho Ti ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): We review the district court's decision to admit or exclude the testimony of a party's expert witness for abuse of discretion. Kumho Tire, 526 U.S.…
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Judicial Recusal — May Judges Recuse Themselves from Part of a Case But Not All of It under § 455? — Circuit Split — Sixth Circuit Adopts Majority Rule that Partial Recusal Is Permissible

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although the jury found for GEHC on the design defect and nonconformance to representation claims, the jury found for plai ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although…
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Email / Text Admissibility — Texts Properly Admitted for Impeachment Purposes Only, Pursuant to Rule 613(a)

I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision to admit or deny evidence is reviewed for an abuse ...
I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision…
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Hearsay Problems Proving Legislative Intent through Newspaper Articles — Limited Utility of Residual Exception (Rule 807) — Alternate Proof

Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014): On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's Health and Safety Act, 1975 Ala. Code § 26-23E-4(c). Se ...
Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014): On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's…
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Spoliation — Sanctions, Adverse Inference Instruction Denied — Variety of Other Curative Measures Imposed (Illustrative of What Proposed Rule 37(e) Might Contemplate)

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): In 2005, in connection with a magnetic resonance imaging procedure ("MRI"), Paul Decker received a dose of Omniscan, a gadolinium-based contrast agent manufactured by GE Healthcare [*2]  Inc. and GE Healthcare AS ("GEHC& ...
Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): In 2005, in connection with a magnetic resonance imaging procedure ("MRI"), Paul Decker received a dose of Omniscan, a gadolinium-based contrast agent manufactured by GE…
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Is All Legal Advice Privileged or Only If Confidential Client Information Is Revealed? — Circuit Split — Corporate Antitrust Compliance Policy ≠ Privileged — Primarily, a Business Policy—Wide Distribution, Not Labeling It Confidential = Waiver

In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, which CertainTeed argues is shielded by the attorn ...
In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014): At issue is whether the Court should grant the Indirect Purchaser Plaintiffs' motion to compel production of Defendant CertainTeed Gypsum, Inc.'s antitrust compliance policy, …
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§ 1447(c) Sanctions — Where No Public Information Disclosed Citizenship of Members of LLC, Except Parent Whose Citizenship Supported Diversity Jurisdiction, Removal Based on Diversity Not Sanctionable

Castleton Square, LLC v. ShopperTrak RCT Corp., 2014 U.S. Dist. LEXIS 148521 (S.D. Ind. Oct. 20, 2014): Plaintiff, Castleton Square, LLC, moves to remand the present action against ShopperTrak RCT Corporation because the parties are not completely diverse. Castleton Square also seeks an award of costs, expenses, and attorneys' fe ...
Castleton Square, LLC v. ShopperTrak RCT Corp., 2014 U.S. Dist. LEXIS 148521 (S.D. Ind. Oct. 20, 2014): Plaintiff, Castleton Square, LLC, moves to remand the present action against ShopperTrak RCT Corporation because the parties are not completely diverse. Castleton Square…
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The Limits of Stipulation — Yes, There Are Things Parties Cannot Stipulate to

In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App. 3d 284, 172 Cal. Rptr. 109 (Ct. App. 1981) ("Although a r ...
In re Deepwater Horizon, 753 F.3d 516 (5th Cir. 2014) (Clement, J., dissenting): Even with the assent of all parties, judges still have the obligation to reject stipulations that are not factually true. See People v. Marling, 116 Cal. App.…
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RICO — Enterprise, Non-Fraud Claims Need Only Satisfy 8(a), Not 9(b) — Plausible Nexus between Pattern, Enterprise Essential — RICO Not Violated Every Time Two People Violate Predicates — No Need to Move for Leave to Amend; Request in Brief Enough

D. Penguin Bros. Ltd. v. City Nat’l Bank, 2014 U.S. App. LEXIS 19909 (2d Cir. Oct. 16, 2014): Plaintiffs-Appellants are two real estate developers, Pete Jacov and Avraham Glattman, and multiple corporations and limited liability companies co-owned by them (collectively, "plaintiffs"). Plaintiffs allege that defendants Dav ...
D. Penguin Bros. Ltd. v. City Nat’l Bank, 2014 U.S. App. LEXIS 19909 (2d Cir. Oct. 16, 2014): Plaintiffs-Appellants are two real estate developers, Pete Jacov and Avraham Glattman, and multiple corporations and limited liability companies co-owned by them (collectively,…
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Securities — Corporate Scienter — Must Misrepresentation Be Made by Someone Harboring Scienter, Or May Someone Else Have It? If the Latter, How High in the Hierarchy Must the Speaker Be? Circuit Split — New Sixth Circuit Standard

In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate or defraud.'" In re Comshare, 183 F.3d a ...
In re Omnicare, Inc. Secs. Litig., 2014 U.S. App. LEXIS 19326 (6th Cir. Oct. 10, 2014): B. Element Two: Scienter To satisfy Element Two, plaintiffs must plead facts showing that defendants had a "'mental state embracing intent to deceive, manipulate…
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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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