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

Retained vs. Unretained Experts — Identifying Characteristics of Each and Limitations on the Scope of Testimony of the Latter

Compass Bank v. Eager Road Assocs., LLC, 2013 U.S. Dist. LEXIS 154118 (E.D. Mo. Oct. 28, 2013): In the First Amended Complaint, the Banks seek damages for the breach of a Settlement Agreement between the parties arising out of   an underlying lawsuit brought in this district. (ECF No. 107). The dispute un ...
Compass Bank v. Eager Road Assocs., LLC, 2013 U.S. Dist. LEXIS 154118 (E.D. Mo. Oct. 28, 2013): In the First Amended Complaint, the Banks seek damages for the breach of a Settlement Agreement between the parties arising out of   an…
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Spoliation — Fourth Circuit Standard — Intentionality But Not Bad Faith — Failure to Trigger Duty to Preserve Bars Sanction for Routine Recycling — Spoliation, Alone, No Ground for Civil Cause of Action under Federal or Admiralty Law

Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The district court properly denied Ms. Turner's motion for sanctions based on spoliation. Spoliation is a rule of evidence, and the decision to impose sanctions for violations is one "'administered at the discretion of the trial court'" ...
Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The district court properly denied Ms. Turner's motion for sanctions based on spoliation. Spoliation is a rule of evidence, and the decision to impose sanctions for…
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Contracts — Breach of Condition Precedent Ends Other Party’s Obligations Regardless of Materiality — Spoliation Sanctions — Criteria for Striking Pleadings and for Dismissal (or Default)

St. Louis Produce Mkt. v. Hughes, 2013 U.S. App. LEXIS 23029 (8th Cir. Nov. 14, 2013): After protracted discovery, during which the district court sanctioned Hughes for discovery abuses, the court granted summary judgment for the Market on two alternative grounds. First, assuming for the sake of analysis that the separation agreement ...
St. Louis Produce Mkt. v. Hughes, 2013 U.S. App. LEXIS 23029 (8th Cir. Nov. 14, 2013): After protracted discovery, during which the district court sanctioned Hughes for discovery abuses, the court granted summary judgment for the Market on two alternative…
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Email Admissibility — Merely Forwarding Email without Comment ≠ Adoptive Admission — Hearsay within Hearsay

Taylor-Bertling v. Foley, 2013 Ariz. App. Unpub. LEXIS 1276 (Ariz. Ct. App. Nov. 20, 2013): P1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and judgment was entered against the Taylor-Bertlings. *** < ...
Taylor-Bertling v. Foley, 2013 Ariz. App. Unpub. LEXIS 1276 (Ariz. Ct. App. Nov. 20, 2013): P1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and…
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Orders Authorizing Subpoenas and Other Discovery under 28 U.S.C. § 1782 Are Properly Issued Ex Parte

In re Ex Parte Application of Société d'Etude De Réalisation et d'Exploitation pour le Traitement du Mais, ,2013 U.S. Dist. LEXIS 167219 (E.D. Pa. Nov. 22, 2013): On November 20, 2013, Société d'Etude de Réalisation et d'Exploitation pour le Traitement du Mais ("SERETRAM") applied for an order for leave ...
In re Ex Parte Application of Société d'Etude De Réalisation et d'Exploitation pour le Traitement du Mais, ,2013 U.S. Dist. LEXIS 167219 (E.D. Pa. Nov. 22, 2013): On November 20, 2013, Société d'Etude de Réalisation et d'Exploitation pour le Traitement…
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Experts — Failure to Make 26(a)(2)(C) Expert Disclosure for Treating Physician (and, Presumably, Anybody Else) Limits Testimony to That of a Fact Witness

Vandivier v. United States, 2013 U.S. Dist. LEXIS 163295 (S.D. Ind. Nov. 16, 2013): A treating physician may be called upon to provide expert testimony if he or she is providing opinions based upon specialized knowledge, even if those opinions were formed during the course of the plaintiff's treatment. See O'Conner v. Commonw ...
Vandivier v. United States, 2013 U.S. Dist. LEXIS 163295 (S.D. Ind. Nov. 16, 2013): A treating physician may be called upon to provide expert testimony if he or she is providing opinions based upon specialized knowledge, even if those opinions…
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A Judgment Registered in Federal Court under 28 U.S.C. § 1963 Doesn’t Create a New Judgment That Can Be Re-Registered in a Second Federal Court Where It Had Once Been Registered But Has Expired

Fidelity Nat’l Fin., Inc. v. Friedman, 939 F. Supp. 2d 974 (D. Ariz. 2013): This dispute, now in its second decade, pertains to the latest attempt by plaintiffs, Fidelity National Financial, Inc. and Fidelity Express Network, Inc. ("Fidelity"), to enforce a judgment. Fidelity obtained that judgment which, with interest, n ...
Fidelity Nat’l Fin., Inc. v. Friedman, 939 F. Supp. 2d 974 (D. Ariz. 2013): This dispute, now in its second decade, pertains to the latest attempt by plaintiffs, Fidelity National Financial, Inc. and Fidelity Express Network, Inc. ("Fidelity"), to enforce…
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§ 1927 Sanctions Imposable Only on Lawyers, Not Law Firms — Failure to Identify Lawyer in Motion Fatal — Sixth Circuit 1927 Standards — Delay in Filing Motion Partially to Blame for Prolonging Case

Meathe v. Ret, 2013 U.S. Dist. LEXIS 166999 (E.D. Mich. Nov. 25, 2013): As to the substantive question of whether sanctions should be imposed under §1927, the Court must consider whether a lawyer knows or reasonably should have known that the claim being pursued is frivolous. The statute requires "a showing of somethin ...
Meathe v. Ret, 2013 U.S. Dist. LEXIS 166999 (E.D. Mich. Nov. 25, 2013): As to the substantive question of whether sanctions should be imposed under §1927, the Court must consider whether a lawyer knows or reasonably should have known that…
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A Brief History of Arbitration — 900 Years in a Few Paragraphs

Delaware Coalition for Open Gov’t, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) (note:  this is the case holding that the public has a right of access under the First Amendment to Delaware’s state-sponsored arbitration program): 2. Arbitrations  Arbitrations also have a long history. Wr ...
Delaware Coalition for Open Gov’t, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) (note:  this is the case holding that the public has a right of access under the First Amendment to Delaware’s state-sponsored arbitration program): 2. Arbitrations  Arbitrations…
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Issues That Could Have Been, But Were Not, Raised on First Appeal Are Barred on Subsequent Appeal

Maheca Trans. Co. v. Phila. Indem. Co., 2013 U.S. App. LEXIS 23396 (8th Cir. Nov. 21, 2013): For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have been presented in the first appeal. See Clark v. Brown, 119 F. 130, 132 (8th Cir. ...
Maheca Trans. Co. v. Phila. Indem. Co., 2013 U.S. App. LEXIS 23396 (8th Cir. Nov. 21, 2013): For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have …
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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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