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

Defendant Real-Party-in-Interest May Remove without Filing Appearance in State Court — “The Defendant” in 28 U.S.C. § 1441 = Defendant Real-Party-in-Interest

La Russo v. St. George’s Univ. Sch. of Med., 747 F.3d 90 (2d Cir. 2014) (Question:  Is the following analysis consistent with the holding of Lincoln Property Co. v. Roche, 546 U.S. 81 (2005)?): This appeal primarily concerns a narrow issue of federal procedural law and an equally narrow issue of New York procedural law.
La Russo v. St. George’s Univ. Sch. of Med., 747 F.3d 90 (2d Cir. 2014) (Question:  Is the following analysis consistent with the holding of Lincoln Property Co. v. Roche, 546 U.S. 81 (2005)?): This appeal primarily concerns a narrow…
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Comity among Circuits — Separate Proceedings Concerning Same Subject Matter Should Be Decided Alike — Like Law of the Case — One Circuit Shouldn’t Grant Relief Substantially Interfering with Decisions of Sister Circuit — Good Quotes

Chevron Corp. v. Page (In re Narango), 2014 U.S. App. LEXIS 18293 (4th Cir. Sept. 24, 2014) (Note:  In the ongoing Chevron/Ecuador litigation, Chevron sought documents from co-counsel of Donziger in Maryland both under Rule 45 in connection with litigation in the Southern District of New York and under § 1782 in connection with its continuing ...
Chevron Corp. v. Page (In re Narango), 2014 U.S. App. LEXIS 18293 (4th Cir. Sept. 24, 2014) (Note:  In the ongoing Chevron/Ecuador litigation, Chevron sought documents from co-counsel of Donziger in Maryland both under Rule 45 in connection with litigation…
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Rule 45 — No Appellate Jurisdiction to Review Order Compelling Production of Privileged Material — Perlman Inapt If Work Product Protection Claimed Because Lawyer Interested in Work Product — Does Mohawk Overrule Perlman?

Chevron Corp. v. Page (In re Narango), 2014 U.S. App. LEXIS 18293 (4th Cir. Sept. 24, 2014): These consolidated appeals stem from a multi-billion-dollar judgment rendered in Ecuador against the Chevron Corporation. Chevron has sought discovery in several American courts to obtain evidence that [*2]  the Ecuadorian plaintiffs and thei ...
Chevron Corp. v. Page (In re Narango), 2014 U.S. App. LEXIS 18293 (4th Cir. Sept. 24, 2014): These consolidated appeals stem from a multi-billion-dollar judgment rendered in Ecuador against the Chevron Corporation. Chevron has sought discovery in several American courts…
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§ 1927 Sanctions — Defendants’ Settlement with Plaintiffs for Attorney’s Fees They Owe ≠ Release of Counsel for “Excess” Fees — Ambush by Late Motion — Recklessness OK in 11th Cir. — Plain Error Review If No Objection to MJ R&R

Oliva v. NBTY, Inc., 2014 U.S. App. LEXIS 18040 (11th Cir. Sept. 22, 2014): Attorney Brian Glick appeals the district court's order imposing sanctions on him based on 28 U.S.C. § 1927 and the court's inherent authority. Glick represented the plaintiffs in a personal injury lawsuit against NBTY, Inc. and NBTY Manufacturing LLC ...
Oliva v. NBTY, Inc., 2014 U.S. App. LEXIS 18040 (11th Cir. Sept. 22, 2014): Attorney Brian Glick appeals the district court's order imposing sanctions on him based on 28 U.S.C. § 1927 and the court's inherent authority. Glick represented the…
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Text / Email Admissibility — Direct Evidence Not Essential; Circumstantial Evidence Sufficient — Idaho Supreme Court, Construing Evidence Rules Identical to Fed. R. Evid.

State v. Koch, 2014 Ida. LEXIS 243 (Ida. Sup. Ct. Sept. 4, 2014): Michael Eugene Koch appeals from his judgment of conviction, entered following a verdict, for four counts of lewd conduct with a minor under sixteen. On appeal, Koch argues that the Ada County district court made multiple errors in the admission of evidence that warrant ...
State v. Koch, 2014 Ida. LEXIS 243 (Ida. Sup. Ct. Sept. 4, 2014): Michael Eugene Koch appeals from his judgment of conviction, entered following a verdict, for four counts of lewd conduct with a minor under sixteen. On appeal, Koch…
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26(a)(1) Initial Disclosures — Failure to Timely Update to Add Fact Witnesses Mentioned in Deposition Leads to Exclusion, Even Though They Were Identified 10 Months before Trial — Good Quotes on Prejudice

Ollier v. Sweetwater Union High Sch. Dist., 2014 U.S. App. LEXIS 18020 (9th Cir. Sept. 19, 2014): We next address the exclusion of fact witnesses. The general issue is whether witnesses not listed in Rule 26(a) disclosures--and who were identified  15 months after the discovery cutoff and only ten months before trial--were id ...
Ollier v. Sweetwater Union High Sch. Dist., 2014 U.S. App. LEXIS 18020 (9th Cir. Sept. 19, 2014): We next address the exclusion of fact witnesses. The general issue is whether witnesses not listed in Rule 26(a) disclosures–and who were identified  …
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Federal Arbitration Act — Inherently Biased Arbitration Clause Unenforceable — Unreasonable under M/S Bremen and Unconscionable — Does State or Federal Law Govern Forum Selection Clause in Diversity? Circuit Split

Jackson v. Payday Fin’l LLC, 2014 U.S. App. LEXIS 16257 (7th Cir. Aug. 22, 2014): Deborah Jackson, Linda Gonnella, and James Binkowski (collectively "the Plaintiffs") initially brought this action in Illinois state court against Payday Financial, LLC, and other defendant entities owned by, or doing business with, Martin A. ...
Jackson v. Payday Fin’l LLC, 2014 U.S. App. LEXIS 16257 (7th Cir. Aug. 22, 2014): Deborah Jackson, Linda Gonnella, and James Binkowski (collectively "the Plaintiffs") initially brought this action in Illinois state court against Payday Financial, LLC, and other defendant…
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Taxation of Costs under § 1920 — Video Deposition Costs Unrecoverable Where Summary Judgment Granted and Videos Unnecessary for That

In re Text Messaging Antitrust Litig., 2014 U.S. Dist. LEXIS 121804 (N.D. Ill. Sept. 2, 2014): The law permits a party to recover costs for both a paper transcript and video recording of a deposition; the standard is whether it was reasonably necessary for counsel to obtain both. See Little v. Mitsubishi Motors N. ...
In re Text Messaging Antitrust Litig., 2014 U.S. Dist. LEXIS 121804 (N.D. Ill. Sept. 2, 2014): The law permits a party to recover costs for both a paper transcript and video recording of a deposition; the standard is whether it …
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Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Official Form, All of Which Are Heading toward Extinction)

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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Daubert — If Expert Failed to Follow Own Stated Methods, No Reliable Method Followed — Mere Expertise & Subjective Understanding ≠ Reliable Scientific Evidence (Good Quote) — De Novo Issue before Abuse of Discretion Applies

Brown v. Burlington N. Santa Fe Rwy., 2014 U.S. App. LEXIS 16865 (7th Cir. Aug. 29, 2014): Shannon Brown appeals the dismissal of his lawsuit against the Burlington Northern Santa Fe Railway Company ("BNSF"), which he filed under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. Th ...
Brown v. Burlington N. Santa Fe Rwy., 2014 U.S. App. LEXIS 16865 (7th Cir. Aug. 29, 2014): Shannon Brown appeals the dismissal of his lawsuit against the Burlington Northern Santa Fe Railway Company ("BNSF"), which he filed under the Federal…
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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

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

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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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