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

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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Disqualification — Neither a Court’s Decision to Disqualify Counsel Nor Its Refusal to Do So Is an Appealable Final Order — Nor Is a Bankruptcy Judge’s Decision to Appoint Counsel, Or Not to Do So

In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law firm's applications to serve as counsel to the debtors. Becaus ...
In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law …
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Experts, Privilege & Work Product — Testifying Expert’s Notes and Emails with Other Experts and Corporate Employee Not Protected by 2010 Expert Witness Amendments — Good Quotes on Statutory Interpretation — Eleventh Circuit

Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (11th Cir. Dec. 18, 2013) (note:  this appeal affirms the decision excerpted in our posting of January 4, 2013): Respondent-Appellant Dr. Robert Hinchee ("Dr. Hinchee"), who resides in Florida, and Intervenor-Appellant Chevron Corporation ("Chevron&qu ...
Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (11th Cir. Dec. 18, 2013) (note:  this appeal affirms the decision excerpted in our posting of January 4, 2013): Respondent-Appellant Dr. Robert Hinchee ("Dr. Hinchee"), who resides in Florida, and…
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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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