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

Work Product Protection Extends to Oral Communications, Facts, and the Identity of Persons Interviewed by Counsel or Investigators, But Not to Identity of Interviewers

U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (party asserting work pr ...
U.S. Bank N.A. v. PHL Variable Life Ins. Co., 2013 U.S. Dist. LEXIS 143398 (S.D.N.Y. Oct. 3, 2013): The burden of establishing any right to work product protection is on the party asserting it. In re Grand Jury Subpoenas Dated…
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Joinder — Do Defendants Who Participate in BitTorrent File-Sharing — As a Swarm — Engage in a Single Transaction or in a Series of Closely Related Transactions within Rule 20? Caselaw Split

TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013): This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint, Doc. No. 1, ¶ 5. Defendants are identified only by internet prot ...
TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013): This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint,…
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Motions for Reconsideration — Strict Standard — S.D.N.Y. Local Rule — Complaint Urging Positions Previously Rejected or Which District Court Advises Counsel Are Frivolous Merits Rule 11 Sanctions — Mistake, Inexperience No Defense

Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review the denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003). A district court abuses its discretion when its decision: (1) is based on "an e ...
Hochstadt v. N.Y. State Educ. Dep’t, 2013 U.S. App. LEXIS 19418 (2d Cir. Sept. 19, 2013): We review the denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d…
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RICO — Beneficiary of Estate Has No Standing to Sue for RICO Violation Committed against Estate — No Proximate Cause, Hence No Injury

Schrager v. Aldana, 2013 U.S. App. LEXIS 19313 (3d Cir. Sept. 19, 2013): Appellant Arnold Schrager alleges that Appellee Jennifer Aldana conspired with Karen Lipton and Russell Rosenblatt to defraud the estate of Roslyn Schrager, the mother of Appellant and Lipton, for over $1 million. The United States District Court for the Distric ...
Schrager v. Aldana, 2013 U.S. App. LEXIS 19313 (3d Cir. Sept. 19, 2013): Appellant Arnold Schrager alleges that Appellee Jennifer Aldana conspired with Karen Lipton and Russell Rosenblatt to defraud the estate of Roslyn Schrager, the mother of Appellant and…
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Inherent Power Sanctions in Criminal Cases Must Take Counsel’s Constitutional Function into Account — Improper to Give No Warning, Then “Sanction Counsel for Defying the Court’s Unstated Expectations” (Good Quote)

United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.):   Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine im ...
United States v. Agosto-Vega, 2013 U.S. App. LEXIS 19817 (1st Cir. Sept. 27, 2013) (Kayatta, J.):   Attorney Francisco Rebollo-Casalduc ("Rebollo"), a criminal defense attorney, appeals from a $2,000 sanction imposed upon him and his client for filing motions in limine…
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Inherent Power Sanction of Party/§ 1927 of GC—Factors in Picking Right Sanction—Non-Frivolous Positions Do Not Excuse Frivolous Ones—“Deploying a Few Random Nodes of Truth to the End of Evading…an Over-Arching…Truth” (Good Quotes)

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver specie.  This action presented ...
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 2013 U.S. Dist. LEXIS 137633 (M.D. Fla. Sept. 25, 2013): This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 …
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Why Not to Label an Opponent’s Argument “Ridiculous”

Bennett v. State Farm Mutual Auto. Ins. Co., No. 13-3047 (6th Cir. Sept. 24, 2013): There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here.  The reasons include civility; the near-certainty that overstatement will only push the ...
Bennett v. State Farm Mutual Auto. Ins. Co., No. 13-3047 (6th Cir. Sept. 24, 2013): There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here.  The reasons include …
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If All Opinions Are Now Citable, What Does It Mean to Have a Court Rule Saying the Opinion Is Non-Precedential?

 Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Footnote 1. This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential future analysis of the res judicata, law of the case, ...
Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Footnote 1. This unpublished memorandum opinion is intended solely to inform the parties and any reviewing court of the basis for the instant ruling, or, alternatively,…
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Failure to Provide 21-Day Safe Harbor Mandates Denial of Uncontested Rule 11 Motion

Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Midland filed its Motion for Sanctions on October 10, 2011, approximately two weeks after the Court's dismissal of Plaintiff's First Amended Complaint. Therein, Midland invokes Federal Rule of Civil Procedure 11 in seeking "an award of att ...
Dixon v. Midland Mortg. Co., 2013 U.S. Dist. LEXIS 137279 (D.D.C. Sept. 25, 2013): Midland filed its Motion for Sanctions on October 10, 2011, approximately two weeks after the Court's dismissal of Plaintiff's First Amended Complaint. Therein, Midland invokes Federal…
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When a Circuit Court Feels It Necessary, It May Create a Circuit Split Even If Many Other Circuits Unanimously Take the Other View

Woods v. Carey, 722 F.3d 1177 (9th Cir. 2013): Footnote 7. *** More important, although a circuit split is not desirable, we are not required to follow the initial circuit to decide an issue if our own careful analysis of the legal question leads us to conclude that Congress intended the contrary result. Zimmerman ...
Woods v. Carey, 722 F.3d 1177 (9th Cir. 2013): Footnote 7. *** More important, although a circuit split is not desirable, we are not required to follow the initial circuit to decide an issue if our own careful analysis 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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