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

Supplemental Expert Reports — Need to Rely on Information Previously Unknown — Substantial Justification and Harmless Error: Four-Factor Test (Second Circuit)

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28]  testimony must be accompanied by a written report which shall contain, inter alia, "a complete statement o ...
Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure expert [*28]  testimony must be accompanied by a written report which shall contain, inter alia, "a…
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Class Actions — Does American Pipe Toll Statutes of Repose? — Circuit Split

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2.  The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) is not subject to American Pipe to ...
In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138900 (S.D. Tex. Sept. 30, 2014): 2.  The statute of repose was also tolled. Alternatively, Defendants contend that the five-year period of repose found in 28 U.S.C. § 1658(b)(2) …
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FRAP 38 Sanctions on Appellant Arguing Its Own Claims Were Too Frivolous to Support Subject Matter Jurisdiction — Utterly Frivolous Federal Claim Won’t Support Jurisdiction — Best Evidence of Value of Lawyer’s Time Is What Client Agreed to Pay

McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2]  entities. 760 F.3d 674 (7th Cir. 2014). After we issued the opinion, the Outland appellants filed a petiti ...
McCoy v. Iberdrola Renewables, Inc., 2014 U.S. App. LEXIS 19621 (7th Cir. Oct. 7, 2014): We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland [*2]  entities. 760 F.3d 674 (7th Cir. 2014). After…
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Securities — Is Pleading of Loss Causation Governed by Rule 8(a) or 9(b)? — Case Law Split

Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not address that issue because the Plaintiff has not pleaded sufficient loss causation ...
Stein v. Tangoe, Inc., 2014 U.S. Dist. LEXIS 137966, at *82-83 n. 7 (D. Conn. Sept. 30, 2014): Courts have split on whether Rule 8(a) or Rule 9(b) applies to pleading the loss causation element, but this Court need not…
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Preliminary Injunctions — Court May Consider Hearsay Evidence on P.I. Motion — Admissibility under Federal Rules of Evidence Goes to Weight at P.I. Stage

Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014): The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing. In hearing evidence on a motion for preliminary injunction, the " ...
Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014): The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing.…
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Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this motion to "amend[] the prior Pretrial Order and allow both parties to disclose v ...
Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this…
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Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were not sufficiently authenticated. We review the trial court's order ad ...
People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were…
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Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under 42 U.S.C. §1983 seeking damages. Michael Drake, the guard, asked the court to dismiss the suit because Rivera ...
Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under…
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Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should not have been granted< ...
Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should …
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Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's evidentiary rulings for an abuse of discretion.  [*17]
Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's…
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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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