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

Can a Party Consent to the Bankruptcy Court Entering a Final Order in a Core Matter Otherwise Barred by Stern v. Marshall? — Circuit Split

In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a core matter that would normally be prohibited by Stern. There is currently a circuit split o ...
In re Morris (Silagy v. Morris), 2013 Bankr. LEXIS 4369 (Bankr. N.D. Ohio Oct. 18, 2013): The last jurisdictional issue is whether a party can consent, either expressly or impliedly, to the bankruptcy court entering a final order in a …
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Rule 26(a)(1) Damages Disclosure — “Substantial Justification” and Harmless Error — No Requirement That Expert Perform Complicated Initial Disclosures

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure re ...
U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): "Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ …
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RICO — Deprivation of Workers Comp ≠ Injury to Business or Property But Personal Injury — Clear Statement Canon of Interpretation — “The Most Liberal Construction of RICO Is Not Always the Proper One” — Good Quotes

Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 2013 U.S. App. LEXIS 19495 (6th Cir. Sept. 24, 2013): Clifton Jackson and Christopher Scharnitzke were employees of Coca-Cola Enterprises, Inc. ("Coca-Cola") who suffered work-related injuries. They applied for workers' compensation benefits from Coca-Cola through Sedgwick ...
Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 2013 U.S. App. LEXIS 19495 (6th Cir. Sept. 24, 2013): Clifton Jackson and Christopher Scharnitzke were employees of Coca-Cola Enterprises, Inc. ("Coca-Cola") who suffered work-related injuries. They applied for workers' compensation benefits from…
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Under New York Choice of Law Principles, If Parties Assume or Agree That New York Law Controls, It Does

Tripoint Global Equities, LLC v. Fasolino, 2013 U.S. Dist. LEXIS 150271 (S.D.N.Y. Oct. 18, 2013): Having resolved the usury counts, the next substantive issue is the legal malpractice claim against Weiss in Count One. Both parties assume that New York law applies to the legal malpractice claim, but they do not directly add ...
Tripoint Global Equities, LLC v. Fasolino, 2013 U.S. Dist. LEXIS 150271 (S.D.N.Y. Oct. 18, 2013): Having resolved the usury counts, the next substantive issue is the legal malpractice claim against Weiss in Count One. Both parties assume that New York …
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Extension of 30-Day Period within Which to File Notice of Appeal — Factors to Prove Excusable Neglect or Good Cause

Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review "for abuse of discretion a district court's decision to grant or deny an extension of time to file a notice of appeal." Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004). Pursuant to Federal ...
Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review "for abuse of discretion a district court's decision to grant or deny an extension of time to file a notice of appeal."…
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§ 1927 Sanctions Are Imposable for, But Not Limited to, Dilatory Conduct

B. Willis CPA, Inc. v. Public Serv. Co. of Okla., 511 F. App'x 753 (10th Cir. 2013): Under a heading titled "The District Court Lacked Jurisdiction To Consider a Motion For Sanctions," Aplt. Opening Br. at 17, Mr. Dickson makes several arguments. First, he argues that "Section 1927 targets the vexatious and unreaso ...
B. Willis CPA, Inc. v. Public Serv. Co. of Okla., 511 F. App'x 753 (10th Cir. 2013): Under a heading titled "The District Court Lacked Jurisdiction To Consider a Motion For Sanctions," Aplt. Opening Br. at 17, Mr. Dickson makes…
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Does a Complete Offer of Settlement Made Prior to Class Certification Moot a Class Action? — Circuit Split — Impact of Genesis — District Court Decision Not Binding on Other District Courts

Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 2013 U.S. Dist. LEXIS 142527 (D. Md. Oct. 2, 2013): Plaintiff Kensington Physical Therapy, Inc. ("Plaintiff") brings this action against Defendant Jackson Therapy Partners, LLC ("Defendant"). Plaintiff asserts a putative class action claim under the Telepho ...
Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 2013 U.S. Dist. LEXIS 142527 (D. Md. Oct. 2, 2013): Plaintiff Kensington Physical Therapy, Inc. ("Plaintiff") brings this action against Defendant Jackson Therapy Partners, LLC ("Defendant"). Plaintiff asserts a putative class…
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Rule 11 Sanctions Not Intended to Deter Novel or First Impression Arguments (Good Quote) — Local Counsel Allocated 25% of Penalty for Signing Frivolous Pleading — Acrimony as Requiring Greater Factual Inquiry

Walther v. McIntosh, 2013 U.S. Dist. LEXIS 144730 (M.D. Fla. Oct. 4, 2013):   Dorothy B. Walther is the income beneficiary of the James Walther Revocable Life Insurance Trust. (Doc. 5, ¶ 14.) Howard Walther, her son, is a contingent remainderman beneficiary of the Trust. (Id.) These Plaintiffs brought suit in ...
Walther v. McIntosh, 2013 U.S. Dist. LEXIS 144730 (M.D. Fla. Oct. 4, 2013):   Dorothy B. Walther is the income beneficiary of the James Walther Revocable Life Insurance Trust. (Doc. 5, ¶ 14.) Howard Walther, her son, is a contingent remainderman …
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Experts — The Helpfulness Threshold of Rule 702 Is Low — The District Court, Not the Court of Appeals, Is the Primary Gatekeeper

EEOC v. Boh Bros. Constr. Co., LLC, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013): Footnote 14.   The EEOC presented testimony by Dr. Liza Gold--a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment--regarding the nature of same-sex harassment from a psychological perspective ...
EEOC v. Boh Bros. Constr. Co., LLC, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013): Footnote 14.   The EEOC presented testimony by Dr. Liza Gold–a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment–regarding the…
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Applicability of Daubert at Class Certification — Circuit Split — Dicta of the Supreme Court “Should Be Very Persuasive” (Good Quote)

Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C. 2013): Footnote 2.   In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54, 180 L. Ed. 2d 374 (2011), the Supreme Court suggested that a court should probably determine whether expert testimony is admissible under Rule 702 and Daubert   at the cla ...
Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C. 2013): Footnote 2.   In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54, 180 L. Ed. 2d 374 (2011), the Supreme Court suggested that a court should probably determine whether…
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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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