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

Must SEC Plead and Prove Scienter on a Claim That a Director or Officer Made a Materially False Statement to an Auditor? Circuit Split — Agency’s Interpretation of Own Rules Entitled to Controlling Weight If Consistent with Statute

SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to an accountant in connection with SEC filings, among other things."
SEC v. Goldstone, 952 F. Supp. 2d 1060 (D. N.M. 2013): 5. Deceit of Auditors. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to …
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When a Statute Is Best Applied Uniformly, Compelling Reason Required to Convince Court to Create Circuit Split

Sachs v. Republic of Austria, 737 F.3d 583 (9th Cir. 2013): Because Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity, and because we think that Congress intended to permit suit in the United States against foreign sovereign common carriers that sell tickets in the United States ...
Sachs v. Republic of Austria, 737 F.3d 583 (9th Cir. 2013): Because Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity, and because we think that Congress intended to permit suit in the United States…
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Website Evidence / Pleading and Practice — Court May Not Take Judicial Notice of Website That Is Not Self-Authenticating on Dismissal Motion in Third Circuit — Authentication Required

McGown v. Silverman & Borenstein, PLLC, 2014 U.S. Dist. LEXIS 12823 (D. Del. Feb. 3, 2014): While McGown conclusorily states S&B is a "debt collector" in her Complaint, she further details collection activities undertaken by S&B including collection activities for Capital One and actions taken to collect the debt from McGown ...
McGown v. Silverman & Borenstein, PLLC, 2014 U.S. Dist. LEXIS 12823 (D. Del. Feb. 3, 2014): While McGown conclusorily states S&B is a "debt collector" in her Complaint, she further details collection activities undertaken by S&B including collection activities for…
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Facebook Evidence — Social Media Authentication — Delaware Adopts Texas Approach: Let the Jury Decide, Once the Trial Judge Determines That a Reasonable Jury Could Find the Social Network Evidence Authentic

Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her Facebook profile. The Superior Court admitted the evidence under ...
Parker v. State, 2014 Del. LEXIS 49 (Del. Sup. Ct. Feb. 5, 2014): Defendant-below/Appellant, Tiffany Parker, appeals from a Superior Court jury conviction of Assault Second Degree. Parker claims that the Superior Court erred in admitting statements posted on her …
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28 U.S.C. § 1782 — Eleventh Circuit Withdraws Opinion Holding that Foreign Arbitration Is a “Proceeding” for Which § 1782 Discovery May Be Obtained — But Has It?

Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note:  this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion in this case, issued on June 25, 2012 and published at 685 F.3d 987 (11th Cir. 2012), an ...
Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note:  this opinion withdraws the opinion excerpted in our post of June 29, 2012): We sua sponte vacate the prior opinion…
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Summary Charts at Trial — Summaries as Evidence vs. Summaries of Evidence — Do the Latter Go to the Jury?

United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): A. Anekwu argues that the district court erred in admitting the chart summarizing the foreign bank records, because summary charts cannot be admitted as evidence if the underlying records are admitted. We review a district court's admis ...
United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012): A. Anekwu argues that the district court erred in admitting the chart summarizing the foreign bank records, because summary charts cannot be admitted as evidence if the underlying records …
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Judicial Notice of Internet Archive Evidence (Wayback Machine) and of Government Website Data

  Puerto Rico v. Shell Oil Co. (In re Methyl Tertiary Butyl Ether “MTBE” Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 181837, at *17-18 n. 65 (S.D.N.Y. Dec. 30, 2013): Moreover, a review of the EIA [Energy Information Administration] website reports would have revealed that Vitol S.A. was importing gasoline in Puerto Rico a ...
Puerto Rico v. Shell Oil Co. (In re Methyl Tertiary Butyl Ether “MTBE” Prods. Liab. Litig.), 2013 U.S. Dist. LEXIS 181837, at *17-18 n. 65 (S.D.N.Y. Dec. 30, 2013): Moreover, a review of the EIA [Energy Information Administration] website reports…
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2010 Expert Amendments — 9th Circuit Joins 10th and 11th: Only Draft Expert Reports and Communications with Counsel Are Protected — Special Salience of Advisory Committee Notes in Construing Rules — Implicit 1782 Ruling

Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather evidence for international arbitration proceedings): Chevron Corporation and two of its expert witn ...
Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014) (note that the Ninth, Tenth and Eleventh Circuits, in the Ecuador cases, have all implictly ruled that 28 USC 1782 is available to gather …
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Inherent Power Sanctions — Factors — Court Not Limited by Motion’s Grounds, May Sanction for Any Misconduct — Significance of Blameless Clients — Prejudice from Receiving Documents on Eve of Trial — Good Quotes

Projects Mgmt. Co. v. Dyncorp Int’l LLC, 2013 U.S. App. LEXIS 22443 (4th Cir. Nov. 5, 2013): Projects Management Company ("PMC") appeals from the district court's dismissal of its suit against DynCorp International LLC ("DynCorp"). The district court dismissed PMC's suit on two alternate grounds: first, ...
Projects Mgmt. Co. v. Dyncorp Int’l LLC, 2013 U.S. App. LEXIS 22443 (4th Cir. Nov. 5, 2013): Projects Management Company ("PMC") appeals from the district court's dismissal of its suit against DynCorp International LLC ("DynCorp"). The district court dismissed PMC's…
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Sovereign Immunity — Subpoena Is a “Suit” Precluded by Tribal Sovereign Immunity

Bonnet v. Harvest (US) Holdings, Inc.,  2014 U.S. App. LEXIS 1686 (10th Cir. Jan. 28, 2014): The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a "suit" against the Tribe triggering tribal sovereign immunity. Exercising ...
Bonnet v. Harvest (US) Holdings, Inc.,  2014 U.S. App. LEXIS 1686 (10th Cir. Jan. 28, 2014): The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in…
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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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