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

Sarbanes-Oxley Whistleblower May Recover Damages for Emotional Distress, Humiliation and Injury to Reputation — Caselaw Split

Rutherford v. Jones Lang LaSalle Am, Inc., 2013 U.S. Dist. LEXIS 116872 (E.D. Mich. Jan. 29, 2013) (Report and Recommendation): This case involves a claim of retaliation against a corporate whistleblower in violation of the Sarbanes-Oxley Act ("SOX"). The issue raised in the pending motion is one of first impression in this District: do ...
Rutherford v. Jones Lang LaSalle Am, Inc., 2013 U.S. Dist. LEXIS 116872 (E.D. Mich. Jan. 29, 2013) (Report and Recommendation): This case involves a claim of retaliation against a corporate whistleblower in violation of the Sarbanes-Oxley Act (“SOX”). The issue…
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Is the Attorney-Client Privilege a Constitutional Right in Criminal Cases?

Howell v. Trammell, 2013 U.S. App. LEXIS 18477 (10th Cir. Sept. 5, 2013): The relevant out-of-court statements admitted against Howell are Watson's private conversations with her former attorneys and Watson's testimony at the preliminary hearing. While testifying at Howell's trial--under oath and subject to Howell's cross-examination-- ...
Howell v. Trammell, 2013 U.S. App. LEXIS 18477 (10th Cir. Sept. 5, 2013): The relevant out-of-court statements admitted against Howell are Watson’s private conversations with her former attorneys and Watson’s testimony at the preliminary hearing. While testifying at Howell’s trial–under…
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Arbitration — Nonsignatories — Equitable Estoppel, Agency and Third-Party Beneficiary Theories Permitting Nonsignatory to Enforce Arbitration Agreement — Requirements of Each

Murphy v. DircecTV, Inc., 2013 U.S. App. LEXIS 15580 (July 30, 2013): In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme Court held that Section 2 of the Federal Arbitration Act ("FAA") preempts the State of California's rule rendering unenforceable--as unconscionable--arbitration provisions in consumer contracts that w ...
Murphy v. DircecTV, Inc., 2013 U.S. App. LEXIS 15580 (July 30, 2013): In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme Court held that Section 2 of the Federal Arbitration Act (“FAA”) preempts the State of California’s…
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Marital Communications and Attorney-Client Privileges — Waiver by Failing to Object to Pretrial Testimony — Waiver Need Not Be Knowing, Voluntary and Intentional, Just “Voluntary”

United States v. Brock, 2013 U.S. App. LEXIS 15574 (7th Cir. July 30, 2013): A. The Marital Communications Privilege The marital communications privilege covers "information privately disclosed between husband and wife in the confidence of the marital relationship . . . ." Trammel v. United States, 445 U.S. 40, 51 (198 ...
United States v. Brock, 2013 U.S. App. LEXIS 15574 (7th Cir. July 30, 2013): A. The Marital Communications Privilege The marital communications privilege covers “information privately disclosed between husband and wife in the confidence of the marital relationship . .…
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Inherent Power Sanctions for Extrajudicial (Pre-Suit) Misconduct — Expert Testimony Unneeded to Establish “Reckless Disregard” (Qui Tam Case) — Reasonably Foreseeable Intervening Forces Do Not Break Proximate Cause Chain

United States v. King-Vassel, 2013 U.S. App. LEXIS 17989 (7th Cir. Aug. 28, 2013): After acquiring the medical records for N.B., a minor, Dr. Toby T. Watson initiated this qui tam False Claims Act suit against N.B's former treating psychiatrist, Dr. Jennifer King-Vassel. While in King-Vassel's care, N.B. received Medicaid assistance tha ...
United States v. King-Vassel, 2013 U.S. App. LEXIS 17989 (7th Cir. Aug. 28, 2013): After acquiring the medical records for N.B., a minor, Dr. Toby T. Watson initiated this qui tam False Claims Act suit against N.B’s former treating psychiatrist,…
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Removal — § 1441 Does Not Permit Removal of Proceeding in State Agency, Only from State Courts — Circuit Split

Smith v. Detroit Entm’t, LLC, 919 F. Supp. 2d 883 (E.D. Mich. 2013): Section 28 U.S.C. §1441 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . ." 28 U.S.C. § 1441(a). The magistrate judge determined tha ...
Smith v. Detroit Entm’t, LLC, 919 F. Supp. 2d 883 (E.D. Mich. 2013): Section 28 U.S.C. §1441 provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may…
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Challenge to Constitutional Authority of Bankruptcy Court to Enter a Final Judgment on a State-Law Claim under Stern v. Marshall under Article III § 1 Is Not Waivable — Circuit Split

Wellness Int’l Network, Ltd. v. Sharif, 2013 U.S. App. LEXIS 17553 (7th Cir. Aug. 21, 2013): This appeal is the most recent chapter in a decade-long saga spanning two circuits involving the debtor, Richard Sharif, and his judgment creditors, Wellness International Network, Ltd., Ralph Oats, and Cathy Oats (collectively, "WIN"). After ...
Wellness Int’l Network, Ltd. v. Sharif, 2013 U.S. App. LEXIS 17553 (7th Cir. Aug. 21, 2013): This appeal is the most recent chapter in a decade-long saga spanning two circuits involving the debtor, Richard Sharif, and his judgment creditors, Wellness…
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§ 1983 Conspiracy Claims — Does the Intracorporate Conspiracy Doctrine Apply? — Personal Bias Exception

Drager v. Village of Bellwood, 2013 U.S. Dist. LEXIS 119557 (N.D. Ill. Aug. 22, 2013): Defendants next argue that Plaintiff's conspiracy claim is barred under the "intra-corporate" conspiracy doctrine, which holds that a conspiracy cannot exist solely between members of the same entity. Mnyofu v. Bd. of Educ. of Rich Twp. High Sch. Dis ...
Drager v. Village of Bellwood, 2013 U.S. Dist. LEXIS 119557 (N.D. Ill. Aug. 22, 2013): Defendants next argue that Plaintiff’s conspiracy claim is barred under the “intra-corporate” conspiracy doctrine, which holds that a conspiracy cannot exist solely between members of…
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What Is “Extraneous Evidence” within Rule 606(b), That a Juror May Attest to, to Impeach a Verdict? — May Juror Testimony about Dishonesty during Voir Dire Be Used to Impeach a Verdict? Circuit Split

Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013): Gregory Warger sued Randy Shauers to recover for injuries he sustained during a traffic accident. After a mistrial, the jury returned a verdict for Shauers. Warger subsequently moved for judgment as a matter of law, or, in the alternative, for a new trial. The district court denied his m ...
Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013): Gregory Warger sued Randy Shauers to recover for injuries he sustained during a traffic accident. After a mistrial, the jury returned a verdict for Shauers. Warger subsequently moved for judgment as…
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Puffery in Settlement Negotiations — Statements Regarding Damages Made in the Context of Settlement May Not Reliably Be Treated as Accurate Factual Representations (Good Quotes)

Richmond v. Gen. Nutrition Centers, Inc., No. 08 Civ. 3577 (PAE)(HBP), 2012 WL 762307 (S.D.N.Y. Mar. 9, 2012): [T]he context of a settlement discussion, by its nature, is not one in which counsel's oral statement or demand may reliably be treated as an accurate factual representation. A settlement discussion is a negotiation, and a ...
Richmond v. Gen. Nutrition Centers, Inc., No. 08 Civ. 3577 (PAE)(HBP), 2012 WL 762307 (S.D.N.Y. Mar. 9, 2012): [T]he context of a settlement discussion, by its nature, is not one in which counsel’s oral statement or demand may reliably be…
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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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