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

Is a Dismissal on Grounds of Judicial Estoppel Reviewed De Novo or for Abuse of Discretion? — Circuit Split — Elements of Judicial Estoppel — Application to Administrative Proceedings — Prejudice Not Essential

Lia v. Saporito, 2013 U.S. App. LEXIS 20975 (2d Cir. Oct. 17, 2013): Plaintiff Don Lia appeals from the dismissal of his claims against defendants Michael Saporito and Jesse Armstead for specific performance, declaratory judgment, breach of fiduciary duty, constructive trust, unjust enrichment, and an accounting. Plaintiff  Mobile M ...
Lia v. Saporito, 2013 U.S. App. LEXIS 20975 (2d Cir. Oct. 17, 2013): Plaintiff Don Lia appeals from the dismissal of his claims against defendants Michael Saporito and Jesse Armstead for specific performance, declaratory judgment, breach of fiduciary duty, constructive…
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No Bad Faith Required for § 1927 Sanctions in Sixth Circuit — Test Is Whether Lawyer Knew or Should Have Known Position Was Frivolous — No Separate (or Any) Motion Required — Request in Brief for § 1927 Sanctions Suffices

Meathe v. Ret, 2013 U.S. App. LEXIS 22295 (6th Cir. Oct. 29, 2013) Plaintiff Cullan Meathe appeals the district court's grant of summary judgment in this direct shareholder suit alleging breach of fiduciary duty, breach of contract, silent fraud, civil conspiracy, and minority shareholder oppression. Meathe argues that the dist ...
Meathe v. Ret, 2013 U.S. App. LEXIS 22295 (6th Cir. Oct. 29, 2013) Plaintiff Cullan Meathe appeals the district court's grant of summary judgment in this direct shareholder suit alleging breach of fiduciary duty, breach of contract, silent fraud, civil…
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The Five Most Significant Developments in Federal Practice in 2013

1.  The amendments to federal subpoena practice (discussed in the article posted here). 2.  The Tenth and Eleventh Circuit decisions strictly limiting the protection of the 2010 Expert Witness ...
1.  The amendments to federal subpoena practice (discussed in the article posted here). 2.  The Tenth and Eleventh Circuit decisions strictly limiting the protection of the 2010 Expert Witness amendments to (i) communications between lawyers and testifying experts, and…
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Requirements for Case-Ending Sanctions (Fifth Circuit) — Lesser Sanctions Must Be Inadequate — Disregard of Prior Orders Shows Inadequacy, Permits Inference of Willfulness — Due Process Requirements That Sanction Be Just and Tied to Misconduct

Keybank N.A. v. Perkins Rowe Assocs., LLC, 2013 U.S. App. LEXIS 17544 (5th Cir. Aug. 21, 2013): Plaintiff-Appellee KeyBank National Association ("KeyBank") provided Defendants-Appellants, collectively referred to as "Perkins Rowe," with a loan for $170 million to construct a mixed-use development in Baton Rouge, L ...
Keybank N.A. v. Perkins Rowe Assocs., LLC, 2013 U.S. App. LEXIS 17544 (5th Cir. Aug. 21, 2013): Plaintiff-Appellee KeyBank National Association ("KeyBank") provided Defendants-Appellants, collectively referred to as "Perkins Rowe," with a loan for $170 million to construct a mixed-use…
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Daubert — “It Is Not the Role of the District Court to Make Ultimate Conclusions as to … Persuasiveness” — Good Quote — Qualifications of Expert to Analyze Statistical Data to Render Opinion in Expert’s Field Is for Jury

United States v. Reddy, 2013 U.S. App. LEXIS 17018 (11th Cir. Aug. 16, 2013): It is important to note, however, that "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Quiet Tech. DC--8, Inc. v. Hurel--Dubois UK Ltd., 326 F.3d 1333, 1 ...
United States v. Reddy, 2013 U.S. App. LEXIS 17018 (11th Cir. Aug. 16, 2013): It is important to note, however, that "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the …
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Spoliation — Error to Impose Adverse Inference Instruction Absent Finding of Bad Faith in Tenth Circuit

Phillip M. Adams & Assocs., LLC. v. Dell Computer Corp., 519 Fed. App’x 998 (Fed. Cir. 2013): A spoliation sanction is proper under Tenth Circuit law when "(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was  imminent, and (2) the adverse party was prejudiced by the d ...
Phillip M. Adams & Assocs., LLC. v. Dell Computer Corp., 519 Fed. App’x 998 (Fed. Cir. 2013): A spoliation sanction is proper under Tenth Circuit law when "(1) a party has a duty to preserve evidence because it knew, or …
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Sanctions — Inadvertent Violation of Protective Order Not Sanctionable under Inherent Power

City of Alexandria v. Cleco Corp., 2013 U.S. App. LEXIS 23469 (5th Cir. Nov. 20, 2013): This appeal arises from a lawsuit between the City of Alexandria ("the city") and a corporate contractor, Cleco Corporation ("Cleco"). The city retained several private attorneys for representation in the lawsuit. After  som ...
City of Alexandria v. Cleco Corp., 2013 U.S. App. LEXIS 23469 (5th Cir. Nov. 20, 2013): This appeal arises from a lawsuit between the City of Alexandria ("the city") and a corporate contractor, Cleco Corporation ("Cleco"). The city retained several…
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Experts — 2010 Rules Amendments Protect Only Lawyer-Expert Communications and Draft Reports — All Else Is Fair Game (10th Circuit) — Good Quotes on Statutory Construction

In re Application of Republic of Ecuador, 735 F.3d 1179 (10th Cir. 2013): Intervenor-Appellant Chevron Corporation appeals from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceed ...
In re Application of Republic of Ecuador, 735 F.3d 1179 (10th Cir. 2013): Intervenor-Appellant Chevron Corporation appeals from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section…
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Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Jaso v. Coca Cola Co., 2013 U.S. App. LEXIS 16026 (5th Cir. Aug. 2, 2013): Appellant Omar Jaso appeals from the district court's summary judgment in favor of the defendants on his complaint for alleged copyright infringement, RICO violations, and Lanham Act violations. Jaso contends that he holds a Mexican copyright in a song ent ...
Jaso v. Coca Cola Co., 2013 U.S. App. LEXIS 16026 (5th Cir. Aug. 2, 2013): Appellant Omar Jaso appeals from the district court's summary judgment in favor of the defendants on his complaint for alleged copyright infringement, RICO violations, and…
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Does Rule 15(b) (Constructive Amendment of Pleadings at Trial with Permission or on Consent) Apply at Summary Judgment? Is That Rule the Last Word on Whether Issues Not Pled Can Be Litigated on Summary Judgment? Circuit Split

Tank v. Burlington Res. Oil & Gas Co., 2013 U.S. Dist. LEXIS 166382 (D.N.D. Nov. 22, 2013): But, even if the Amended Complaint did not include an alternative request for payment of royalty and penalty interest for the Lassen Well, defendants have argued from the outset that this was the more appropriate remedy over lease cancellation ...
Tank v. Burlington Res. Oil & Gas Co., 2013 U.S. Dist. LEXIS 166382 (D.N.D. Nov. 22, 2013): But, even if the Amended Complaint did not include an alternative request for payment of royalty and penalty interest for the Lassen Well,…
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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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