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

Magistrate Judge Has Subject Matter Jurisdiction to Enter Judgment in Class Action — Absent Class Members Not “Parties” — Ordinary Meaning Shown in Contemporaneous Black’s, Restatements, Cases—Stern v. Marshall Does Not Void 28 USC § 636

Day v. Persels & Assocs., LLC, 2013 U.S. App. LEXIS 18741 (11th Cir. Sept. 10, 2013): This appeal requires that we resolve ... whether a magistrate judge had subject-matter jurisdiction to enter a final judgment in a class action without first obtaining the consent of the absent members of the class.... Miranda Day sued several debt ...
Day v. Persels & Assocs., LLC, 2013 U.S. App. LEXIS 18741 (11th Cir. Sept. 10, 2013): This appeal requires that we resolve … whether a magistrate judge had subject-matter jurisdiction to enter a final judgment in a class action without…
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Arbitration Agreement That Can Be Modified by One Side at Any Time for Any Reason Is Unenforceable — No Consideration If One Party Can Immediately Rescind, Even If It Doesn’t — Is 30 Days’ Notice Enough to Save It?

Day v. Fortune Hi-Tech Mktg., Inc., 2013 U.S. App. LEXIS 19060 (6th Cir. Sept. 12, 2013): These two closely related cases involve Defendant Fortune Hi-Tech Marketing, Inc. ("Fortune Hi-Tech" or "FHTM"). Defendant hired Plaintiffs as independent representatives and Plaintiffs sued, alleging that FHTM was in fact ru ...
Day v. Fortune Hi-Tech Mktg., Inc., 2013 U.S. App. LEXIS 19060 (6th Cir. Sept. 12, 2013): These two closely related cases involve Defendant Fortune Hi-Tech Marketing, Inc. ("Fortune Hi-Tech" or "FHTM"). Defendant hired Plaintiffs as independent representatives and Plaintiffs sued,…
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Attorney-Client Privilege — Assertion of Noerr-Pennington Defense, Which Protects Pre-Litigation Activity, Does Not Waive Privilege Despite Opponent’s Invocation of Sham Exception

Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 ... UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all the Recordings remixed on the album "Roots, Rock, Remixed" and that Rock River therefore cou ...
Rock River Commc’ns, Inc. v. Universal Music Group, Inc., 2013 U.S. App. LEXIS 19257 (9th Cir. Sept. 18, 2013): In October 2007 … UMG sent a cease-and-desist letter to Rock River claiming that UMG owned exclusive licensing rights to all…
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Third Circuit Rejects Non-Precedential Opinion Triggering Rule 11 Safe Harbor Period via Letter — Post-Motion Conduct Not Sanctionable Due to Lack of Notice

In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011 Motion for Sanctions ("Initial Motion"). It asserted that Ettinger's compla ...
In re Miller (Ettinger & Assocs. LLC v. Miller), 2013 U.S. App. LEXIS 19090 (3d Cir. Sept. 16, 2013): 1. Initial Motion for Sanctions On January 31, 2011, the Millers filed and served on Ettinger and Tsarouhis a Rule 9011…
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§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” — “A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous” (Good Quote)

§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous" (Good Quote) Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS 14174 911th Cir. July 15, 2013): Section 1927 provides, in relevant part, ...
§ 1927 Sanctions — Meaning of “Unreasonably and Vexatiously” —  "A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous" (Good Quote) Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS…
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Forum Selection Clauses — Is a Rule 12(b)(3) Dismissal Available to Parties Seeking to Enforce Forum Selection Clauses Even When a § 1404(a) Transfer Is Possible? Circuit Split — Cert Granted to Resolve

LeBlanc v. C.R. England, Inc., 2013 U.S. Dist. LEXIS 121031 (N.D. Tex. Aug. 13, 2013): A. Forum Selection Clauses 1. From Historical Disfavor to Presumptive Validity after Bremen   Forum selection clauses were historically viewed with disfavor by American courts as attempts to ...
LeBlanc v. C.R. England, Inc., 2013 U.S. Dist. LEXIS 121031 (N.D. Tex. Aug. 13, 2013): A. Forum Selection Clauses 1. From Historical Disfavor to Presumptive Validity after Bremen   Forum selection clauses were historically viewed with disfavor by American courts as…
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Dismissal for Failure to Prosecute — Factors — 5½ Months Too Short — Standard Order’s Boilerplate Warning of Sanctions Does Not Provide Sufficient Warning of Dismissal

Carpenter v. City of Flint, 2013 U.S. App. LEXIS 15102 (6th Cir. July 25, 2013): Under this court's precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court's discretion: (1) whether the party's failure is due to willfulness, ...
Carpenter v. City of Flint, 2013 U.S. App. LEXIS 15102 (6th Cir. July 25, 2013): Under this court's precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court's discretion: (1) whether the …
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RICO Damages: Out-of-Pocket Loss vs. Benefit of Bargain — Uniform Misrepresentation & Contract Breach as Bases for Class Certification — Payment as Proof of Reliance — Daubert & Multiple States’ Laws on Class Cert

In re US Foodservice Inc. Pricing Litig., 2013 U.S. App. LEXIS 18141 (2d Cir. Aug. 30, 2013): This case concerns allegations of fraudulent overbilling by U.S. Foodservice, Inc. ("USF"), the country's second largest food distributor whose customers have included the United States government, as well as hospitals, schools ...
In re US Foodservice Inc. Pricing Litig., 2013 U.S. App. LEXIS 18141 (2d Cir. Aug. 30, 2013): This case concerns allegations of fraudulent overbilling by U.S. Foodservice, Inc. ("USF"), the country's second largest food distributor whose customers have included the…
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New Article: Major Changes in Federal Subpoena Practice

Download associated file: Major Changes in Federal Subpoena Practice.pdf  A new article analyzing major amendments to Federal Rule of Civil Procedure 45 governing civil subpoena practice go into effect December 1, 2013, barring intervening Congressional action, has be ...
Download associated file: Major Changes in Federal Subpoena Practice.pdf  A new article analyzing major amendments to Federal Rule of Civil Procedure 45 governing civil subpoena practice go into effect December 1, 2013, barring intervening Congressional action, has been posted…
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Odyssey Marine Exploration

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 from the outset not merely the dicey ...
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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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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