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

Rule 408 as a Prudential Limitation on Discovery of Settlement Communications: Six Views

No. 1.  In re MSTG, Inc., 675 F.3d 1337, 1347 (Fed. Cir. 2012): [T]he district court has discretion to limit discovery of material that is not itself admissible and that was not utilized by the opposing party to protect settlement confidentiality. *** We note that other courts have imposed heightened st ...
No. 1.  In re MSTG, Inc., 675 F.3d 1337, 1347 (Fed. Cir. 2012): [T]he district court has discretion to limit discovery of material that is not itself admissible and that was not utilized by the opposing party to protect settlement…
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RICO & Twombly—If Parties Enter Facially Legitimate Transactions and Operate for Years Thereunder, “Significant…Factual Specificity” Needed to Allege Fraud Plausibly—Judicial Notice of Internet Evidence from Nonpartisan Research Entity

Eclectic Properties E., LLC v. Marcus & Millichap Co., 2014 U.S. App. LEXIS 8579 (9th Cir. May 7, 2014): We consider whether Plaintiffs-Appellants have pleaded facts sufficient under Federal Rules of Civil Procedure 8(a) and 9(b) to support a plausible theory of Racketeering Influenced and Corrupt Org ...
Eclectic Properties E., LLC v. Marcus & Millichap Co., 2014 U.S. App. LEXIS 8579 (9th Cir. May 7, 2014): We consider whether Plaintiffs-Appellants have pleaded facts sufficient under Federal Rules of Civil Procedure 8(a) and 9(b) to support a …
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Removal — Bad Faith Prerequisite for Sua Sponte Sanctions in 2d Circuit Satisfied by Actual Knowledge Removal Requirements Unsatisfied — Improper Purpose Not Required — Benefit to Client and Correctability of Act Irrelevant

Cardona v. Mohabir, 2014 U.S. Dist. LEXIS 62637 (S.D.N.Y. May 6, 2014): Court-initiated sanctions are expressly contemplated by Rule 11(c)(3) yet, except in an unusual case such as this that is premised upon an admission, the subjective bad faith standard requires a district judge with a full calendar of cases to delve into an ...
Cardona v. Mohabir, 2014 U.S. Dist. LEXIS 62637 (S.D.N.Y. May 6, 2014): Court-initiated sanctions are expressly contemplated by Rule 11(c)(3) yet, except in an unusual case such as this that is premised upon an admission, the subjective bad faith standard …
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Removal — Sanctions — Neither Rule 11 Nor Rule 60 Nor the Inherent Power of the Court Permits Striking a Remand Order and Retrieving a Case from State Court to Sanction Misrepresentations of Counsel in Obtaining Remand

Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 8143 (4th Cir. April 30, 2014) (2-1 decision): The federal removal statute immunizes from review — appellate or otherwise — any order remanding to state court a case removed to federal court, with an exception for certain civil rights cases or suits against federal offi ...
Barlow v. Colgate Palmolive Co., 2014 U.S. App. LEXIS 8143 (4th Cir. April 30, 2014) (2-1 decision): The federal removal statute immunizes from review — appellate or otherwise — any order remanding to state court a case removed to federal …
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Email Admissibility — Every Level of Hearsay Must Be Addressed — Emails Received by Reporter from Counsel to a Party, While Business Records of Reporter, Are Hearsay as to Counsel’s Statements (Admissions Not Addressed)

Am. Home Assur. Co. v. Greater Omaha Packing Co., 2014 U.S. Dist. LEXIS 51287 (D. Neb. April 14, 2014): This matter is before the Court on the motion of the counterclaim plaintiff Greater Omaha Packing Company, Inc., (Filing No. 434) for the reconsideration of the Court's April 4, 2014, memorandum opinion (Filing No. 432) and orde ...
Am. Home Assur. Co. v. Greater Omaha Packing Co., 2014 U.S. Dist. LEXIS 51287 (D. Neb. April 14, 2014): This matter is before the Court on the motion of the counterclaim plaintiff Greater Omaha Packing Company, Inc., (Filing No. 434)…
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Hearsay Exemption of Rule 801(d)(2)(A) (An Opposing Party’s Statement) Requires Only That Statement Be Offered against a Party Opponent — Rule 804(b)(3) (Statement Against Interest) Distinguished

Matter of Romanowski, 2014 Mich. App. LEXIS 763 (Mich. Ct. App. April 22, 2014): In these consolidated appeals, respondents, the adoptive parents of the involved minor child, appeal as of right from a circuit court dispositional order placing the child in the temporary custody of the court with petitioner, the Department of Human Serv ...
Matter of Romanowski, 2014 Mich. App. LEXIS 763 (Mich. Ct. App. April 22, 2014): In these consolidated appeals, respondents, the adoptive parents of the involved minor child, appeal as of right from a circuit court dispositional order placing the child…
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Supreme Court — Attorney’s Fees under 35 U.S.C. § 285 Reviewed for Abuse of Discretion, Like Rule 11 Sanctions

Highmark Inc. v. Allcare Health Mgmt., 2014 U.S. LEXIS 3106 (U.S. April 29, 2014) (reversing the decision excerpted in our post of December 16, 2012): Section 285 of the Patent Act provides: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U. S. C. §285. In Brooks ...
Highmark Inc. v. Allcare Health Mgmt., 2014 U.S. LEXIS 3106 (U.S. April 29, 2014) (reversing the decision excerpted in our post of December 16, 2012): Section 285 of the Patent Act provides: "The court in exceptional cases may award reasonable…
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Judicial Notice of Internet Evidence — Time Zones and Coordinated Universal Time from National Weather Service Website and Non-Governmental Site www.timeanddate.com

United States v. Diaz, 2014 U.S. Dist. LEXIS 56572 (D. Nev. April 23, 2014): B. The Government's Motion for Judicial Notice of Time Zones [Doc. 146] The Government moves under Federal Rule of Evidence 201 for judicial notice of Coordinated Universal Time ("UTC"), as it relates to Pacific ...
United States v. Diaz, 2014 U.S. Dist. LEXIS 56572 (D. Nev. April 23, 2014): B. The Government's Motion for Judicial Notice of Time Zones [Doc. 146] The Government moves under Federal Rule of Evidence 201 for judicial notice of Coordinated…
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Rule 11 — Unsupportable Individual Allegations in Pleading Are Sanctionable Despite Presence of Other, Supported Allegations

Heller v. Cepia LLC, 2014 U.S. App. LEXIS 4064 (9th Cir. Mar. 4, 2014): The district court did not abuse its discretion in concluding that individual factual misrepresentations in a pleading can be sanctionable under Rule 11. Rule 11 requires an attorney to certify that factual allegations in a pleading have evidentia ...
Heller v. Cepia LLC, 2014 U.S. App. LEXIS 4064 (9th Cir. Mar. 4, 2014): The district court did not abuse its discretion in concluding that individual factual misrepresentations in a pleading can be sanctionable under Rule 11. Rule 11…
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RICO — RICO Remedies Don’t Include Setting Aside Prior Judgment or Undermining Its Preclusive Effect — Loss of Claims Due to Fraud on the Court = RICO Injury — Elements of Fraud on Court and Issue Preclusion

Knight v. Phoenix Central, Inc., 2014 U.S. App. LEXIS 7508 (10th Cir. April 22, 2014): Judy Knight appeals from the dismissal of her lawsuit on the grounds of untimeliness, failure to state a claim, and claim preclusion (res judicata). We affirm the judgment below. Most of our reasons for affirmance are routine. But this appea ...
Knight v. Phoenix Central, Inc., 2014 U.S. App. LEXIS 7508 (10th Cir. April 22, 2014): Judy Knight appeals from the dismissal of her lawsuit on the grounds of untimeliness, failure to state a claim, and claim preclusion (res judicata). We…
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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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