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 37 Sanctions — Fifth Circuit Standards for Dismissal or Default — Denial of Permission to Proceed In Forma Pauperis as Sanction for Repeated Frivolous Appeals

Sandres v. State of La. Div’n of Admin., 2013 U.S. App. LEXIS 25814 (5th Cir. Dec. 30, 2013): Under our precedent, several "Conner factors" must be present before a district court may dismiss an action under Rule 37:      (1) the refusal to comply results from willfulness or bad f ...
Sandres v. State of La. Div’n of Admin., 2013 U.S. App. LEXIS 25814 (5th Cir. Dec. 30, 2013): Under our precedent, several "Conner factors" must be present before a district court may dismiss an action under Rule 37:      (1) the…
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Website Evidence — Basic Authentication

Estate of Konell v. Allied Prop. & Cas. Ins. Co., 2014 U.S. Dist. LEXIS 10183 (D. Or. Jan. 28, 2014): As one of its trial exhibits, plaintiffs has offered Exhibit 44 which is an 11-page Power Point presentation. The first page is titled "Columbia River Gorge, East Wind Storm, January 17th-19th 2009," presented by "Mark ...
Estate of Konell v. Allied Prop. & Cas. Ins. Co., 2014 U.S. Dist. LEXIS 10183 (D. Or. Jan. 28, 2014): As one of its trial exhibits, plaintiffs has offered Exhibit 44 which is an 11-page Power Point presentation. The first…
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The Judicial Admission Exception to the Statute of Frauds — Sufficient for Party to Admit Essential Facts, Not Necessarily the Conclusion That a Contract Exists

Packgen v. BP Exploration & Prod. Co., 957 F. Supp. 2d 58 (D. Me. 2013): 2. The Judicial Admission Exception The statute of frauds contains a "judicial admission" exception that applies:    If the party against whom enforcement is sought admits in his pleading, test ...
Packgen v. BP Exploration & Prod. Co., 957 F. Supp. 2d 58 (D. Me. 2013): 2. The Judicial Admission Exception The statute of frauds contains a "judicial admission" exception that applies:    If the party against whom enforcement is sought admits…
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Elements of RICO Conspiracy, Pattern

United States v. John-Baptiste, 2014 U.S. App. LEXIS 2969 (3d Cir. Feb. 19, 2014): To establish a conviction for a RICO conspiracy, the government must show: (1) that two or more persons agreed to conduct or to participate, directly or indirectly, in the conduct of an enterprise's affairs through a pattern of racketeering ...
United States v. John-Baptiste, 2014 U.S. App. LEXIS 2969 (3d Cir. Feb. 19, 2014): To establish a conviction for a RICO conspiracy, the government must show: (1) that two or more persons agreed to conduct or to participate, directly or …
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Insurer That Breached Its Duty to Defend Is Bound by the Judgment against Its Insured but Otherwise Free to Contest Its Indemnification Obligation under the Policy

K2 Inv. Grp., LLC v. Am. Guarantee & Liab. Ins. Co., 2014 N.Y. LEXIS 201 (N.Y. Ct. App. Feb. 18, 2014): American Guarantee & Liability Insurance Company contends, on reargument, that our prior decision in this case, K2 Inv. Group, LLC v Am. Guar. & Liab. Ins. Co. (21 NY3d 384) (K2-I), erred by failing to take account ...
K2 Inv. Grp., LLC v. Am. Guarantee & Liab. Ins. Co., 2014 N.Y. LEXIS 201 (N.Y. Ct. App. Feb. 18, 2014): American Guarantee & Liability Insurance Company contends, on reargument, that our prior decision in this case, K2 Inv. Group,…
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Res Judicata — Respondent’s Failure to Assert in Arbitration His Defense that the Contract Was Procured by Fraud Precludes Later Lawsuit on that Ground — All Arbitrable Issues Must Be Submitted to Arbitration

  Clinton v. Hendricks & Lewis PLLC, 2014 U.S. App. LEXIS 3131 (9th Cir. Feb. 20, 2014): Plaintiff-Appellant George Clinton appeals district court orders (1) granting Hendricks & Lewis's ("H&L") Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Clinton's fraudulent inducement and negligent m ...
Clinton v. Hendricks & Lewis PLLC, 2014 U.S. App. LEXIS 3131 (9th Cir. Feb. 20, 2014): Plaintiff-Appellant George Clinton appeals district court orders (1) granting Hendricks & Lewis's ("H&L") Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Clinton's fraudulent…
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Rooker-Feldman Inapplicable If State Court Proceedings (Even Appeal) Still Pending — Does Not in Any Event Bar Claim State Court Proceeding Corrupted

Anderson v. Anderson, 2014 U.S. App. LEXIS 2777 (7th Cir. Feb. 14, 2014): Larry Anderson appeals the district court's dismissal of his § 1983 case alleging fraud on the court during his divorce proceedings in Brown County, Wisconsin. The district court dismissed on immunity and abstention grounds. We affirm the dismissal because ...
Anderson v. Anderson, 2014 U.S. App. LEXIS 2777 (7th Cir. Feb. 14, 2014): Larry Anderson appeals the district court's dismissal of his § 1983 case alleging fraud on the court during his divorce proceedings in Brown County, Wisconsin. The district…
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Legal Malpractice — If Lawyer, before Opining, Sees Red Flag That A Client’s Representation Is Incorrect, Lawyer Must Investigate, Can’t Rely on Rep — Statements at Argument and in Header of Brief = “Informal” Judicial Admissions, Not Binding

Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2014 N.Y. App. Div. LEXIS 939 (1st Dept. Feb. 13, 2014) (majority opinion): In this legal malpractice action, plaintiffs allege that defendant law firm failed to provide them with the appropriate legal advice, and rendered a legal opinion without performing the n ...
Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 2014 N.Y. App. Div. LEXIS 939 (1st Dept. Feb. 13, 2014) (majority opinion): In this legal malpractice action, plaintiffs allege that defendant law firm failed to provide them with the …
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RICO — Where Defunding of Plaintiff’s Job Resulted from Discovery of Predicate Acts That Defrauded Third Party, Plaintiff’s Loss of Employment Was Not Caused by § 1962(b) Violation — Injury to Expectancy Interests ≠ RICO Standing

Jackson v. NAACP, 2013 U.S. App. LEXIS 20493 (5th Cir. Oct. 8, 2013):   I. FACTS AND PROCEDURAL HISTORY A.  Factual Background Tracie Jackson and Linda Dunson (collectively "Plaintiffs"), both lawyers, were employed by the National Association for the Advancement of Colore ...
Jackson v. NAACP, 2013 U.S. App. LEXIS 20493 (5th Cir. Oct. 8, 2013):   I. FACTS AND PROCEDURAL HISTORY A.  Factual Background Tracie Jackson and Linda Dunson (collectively "Plaintiffs"), both lawyers, were employed by the National Association for the Advancement of…
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Emails as Verbal Acts

Turner v. Am. Building Condo. Corp., 2014 U.S. Dist. LEXIS 15804 (S.D. Ohio Feb. 7, 2014): Insofar as defendants suggest that evidence introduced into the record for the first time in response to a motion for summary judgment cannot be considered by the Court in resolving the motion, defendants' argument is not well-taken. Further ...
Turner v. Am. Building Condo. Corp., 2014 U.S. Dist. LEXIS 15804 (S.D. Ohio Feb. 7, 2014): Insofar as defendants suggest that evidence introduced into the record for the first time in response to a motion for summary judgment cannot be…
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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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