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

Discovery Sanctions — Dismissal under Rule 37 — Factors — Breadth of Discretion

Moore v. Citgo Refining & Chem. Co., 2013 U.S. App. LEXIS 22835 (5th Cir. Nov. 12, 2013): Console supervisors at a refinery alleged that their employer, CITGO Refining and Chemicals Company, L.P. ("CITGO"), misclassified them as exempt from the overtime pay requirements of the Fair Labor Standards Act ("FLSA"), 29 ...
Moore v. Citgo Refining & Chem. Co., 2013 U.S. App. LEXIS 22835 (5th Cir. Nov. 12, 2013): Console supervisors at a refinery alleged that their employer, CITGO Refining and Chemicals Company, L.P. ("CITGO"), misclassified them as exempt from the overtime…
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“An Expert May Not Merely Recite Another Expert’s Opinion as His Own” (Good Quote)

Member Servs. v. Sec. Mut. Life Ins. Co., 2010 U.S. Dist. LEXIS 103776 (N.D.N.Y Sept. 30, 2010): Finally, those portions of Mr. Cosgrove's report that address technical matters simply repeat Mr. Elliott's opinions and are not based on any personal or independent analysis by Mr. Cosgrove. In  this regard, Mr ...
Member Servs. v. Sec. Mut. Life Ins. Co., 2010 U.S. Dist. LEXIS 103776 (N.D.N.Y Sept. 30, 2010): Finally, those portions of Mr. Cosgrove's report that address technical matters simply repeat Mr. Elliott's opinions and are not based on any personal …
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Goals of Spoliation Sanctions — Court of Appeals Has Discretion to Entertain Arguments on Appeal Not Raised below (Doctrine of Forfeiture) — Is Terminating Excessive If Case Would’ve Been Resolved on Purely Legal Grounds?

Gutman v. Klein, 515 F. App’x 8 (2d Cir. 2013): Defendants-Appellants Zalman Klein ("Klein"), Dina Klein, A to Z Holding Corporation ("Holding"), A to Z Capital Corporation ("Capital"), and Washington Greene Associates ("WGA") (collectively, "defendants") appeal from two judgments (1) awardin ...
Gutman v. Klein, 515 F. App’x 8 (2d Cir. 2013): Defendants-Appellants Zalman Klein ("Klein"), Dina Klein, A to Z Holding Corporation ("Holding"), A to Z Capital Corporation ("Capital"), and Washington Greene Associates ("WGA") (collectively, "defendants") appeal from two judgments (1)…
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RICO — Shareholder and Guarantor Lack Standing to Sue for Injuries Derivative of Corporation’s — Mareva-Like Injunction Potentially OK under State Law — Assignment of Claims Must Antedate Inception of Suit to Confer Standing

Niemi v. Lasshofer, 2013 U.S. App. LEXIS 18589 (10th Cir. Sept. 6, 2013): An unconventional real estate financing scheme presents us with some unconventional legal questions. Questions ranging from whether an Austrian financier should be denied access to the American legal system because he failed to comply with an order freezing his ...
Niemi v. Lasshofer, 2013 U.S. App. LEXIS 18589 (10th Cir. Sept. 6, 2013): An unconventional real estate financing scheme presents us with some unconventional legal questions. Questions ranging from whether an Austrian financier should be denied access to the American…
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Party May Lack Standing to Challenge Document Subpoena Served on Its Testifying Expert Unless Privilege or Work Product Protection Is Jeopardized

Fuller v. Unum Grp., 2013 U.S. Dist. LEXIS 160074 (D. Me. Nov. 8, 2013): The pending motions (motion to compel, motion to quash, and motion to strike) confront the tension between Rules 26 and 45 when a party uses a Rule 45 subpoena duces tecum to seek document discovery from an opposing party's testimonial expert where t ...
Fuller v. Unum Grp., 2013 U.S. Dist. LEXIS 160074 (D. Me. Nov. 8, 2013): The pending motions (motion to compel, motion to quash, and motion to strike) confront the tension between Rules 26 and 45 when a party uses a …
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Experts & Work Product — Materials Provided to Reporting Expert by Anyone Other than Counsel or Client Are Unprotected

United States v. Veolia Environnement N.A. Operations, Inc., 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013): II. Materials Relied On By Experts The parties dispute whether certain materials pertaining to the creation of the appraisal reports by XRoads and Duff & Phelps must be disclosed by the T ...
United States v. Veolia Environnement N.A. Operations, Inc., 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013): II. Materials Relied On By Experts The parties dispute whether certain materials pertaining to the creation of the appraisal reports by XRoads …
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Judicial Notice of Non-Governmental Websites — Procedure — Judicial Notice of Fact That Assertions Are Made vs. Judicial Notice of Content of Those Assertions — Right to Be Heard

United States v. Kane, 2013 U.S. Dist. LEXIS 154248 (D. Nev. Oct. 28, 2013): Before the court is Defendant Steven Carr's motion to dismiss the Government's indictment for lack of jurisdiction (#60). *** This matter involves the alleged extortion and beating of L.T. (hereinafter "the victim") and the prosecuti ...
United States v. Kane, 2013 U.S. Dist. LEXIS 154248 (D. Nev. Oct. 28, 2013): Before the court is Defendant Steven Carr's motion to dismiss the Government's indictment for lack of jurisdiction (#60). *** This matter involves the alleged extortion and…
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Judicial Notice of Reliability of GPS Evidence — Foundational Testimony from Company Representative — Corroborating Evidence — Tracking Reports as Business Records

United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013): This case arises out of Robin Brooks's conviction for offenses related to a bank robbery in Des Moines, Iowa.*** On May 13, 2011, a man entered the Tradesman Community Credit Union in Des Moines, Iowa, approached the teller, and handed her a note stating that he had a ...
United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013): This case arises out of Robin Brooks's conviction for offenses related to a bank robbery in Des Moines, Iowa.*** On May 13, 2011, a man entered the Tradesman Community Credit…
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Should a Litigation That Is Referred to Arbitration Be Stayed or Dismissed under the Federal Arbitration Act? Circuit Split

Bookins v. Superior Mgmt. Grp., Inc., 2013 U.S. Dist. LEXIS 154629 (D. Kan. Oct. 29, 2013): The final issue to decide is whether to stay the proceedings or dismiss Brookins' lawsuit. Superior contends that the  lawsuit should be dismissed because all the issues raised must be submitted to arbitration, citing to appellate cases f ...
Bookins v. Superior Mgmt. Grp., Inc., 2013 U.S. Dist. LEXIS 154629 (D. Kan. Oct. 29, 2013): The final issue to decide is whether to stay the proceedings or dismiss Brookins' lawsuit. Superior contends that the  lawsuit should be dismissed because…
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Absolute Prosecutorial Immunity Does Not Extend to Civil RICO Suit Filed by County Prosecutors Essentially Enjoying No Status Different from Private Lawyers Filing Such Suits

Stapley v. Pestalozzi, 2013 U.S. App. LEXIS 17044 (9th Cir. Aug. 16, 2013): Former prosecutors Andrew Thomas and Lisa Aubuchon, and their spouses, ("Defendants") appeal the district court's partial denial of their motions to dismiss. Former Maricopa County Board of Supervisors member Donald T. Stapley, Jr. and his spous ...
Stapley v. Pestalozzi, 2013 U.S. App. LEXIS 17044 (9th Cir. Aug. 16, 2013): Former prosecutors Andrew Thomas and Lisa Aubuchon, and their spouses, ("Defendants") appeal the district court's partial denial of their motions to dismiss. Former Maricopa County Board of…
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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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