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

Rule 11 Sanctions — “Court Is Expected to Avoid the Wisdom of Hindsight” — Reasonable Reliance on Others — Burden of Proof (Good Quotes)

Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court "is expected to avoid the wisdom of hindsight and should test the signer's conduct by [asking] what was reasonable to believ ...
Anderson v. Bd. of School Directors of Millcreek Township, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013): In determining whether a document was submitted in violation of Rule 11, the adjudicating court “is expected to avoid the wisdom…
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Arbitration — Incorporation of UNCITRAL or AAA Rules in an Arbitration Clause Constitutes Clear and Unmistakable Evidence that Sophisticated Parties Intended to Delegate Arbitrability to Arbitrator

Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court's partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules into an arbitration prov ...
Oracle Am., Inc. v. Myriad Grp A.G., 2013 U.S. App. LEXIS 15284 (9th Cir. July 26, 2013): Myriad Group A.G. appeals the district court’s partial denial of its motion to compel arbitration. Myriad maintains that incorporation of the United Nations…
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Class Actions: Post-Comcast, Court May Certify Liability-Only Class Even If Individualized Issues Predominate on Damages, Provided Damages Track Liability — Meaning of GVR Order from Supreme Court

Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, "DR"), asserting that DR failed to compensate its assistant store managers ("ASMs") for hours worked in ...
Jacob v. Duane Reade, Inc., 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013): Plaintiffs, individually and on behalf of all others similarly situated, bring claims against Duane Reade, Inc. and Duane Reade Holdings (collectively, “DR”), asserting that DR failed…
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Rule 11 Sanctions Reversed Where Pleading Corrected Prior to Rule 11 Motion Having Been Filed, Rendering Correction During Safe Harbor Period Impossible

Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion for sanctions under Federal Rule of Civil Procedure 11(c). See Islamic ...
Islamic Shura Council of S. Cal. v. FBI, 2013 U.S. App. LEXIS 15652 (9th Cir. July 31, 2013): The Federal Bureau of Investigation (“FBI”) appeals the district court’s order granting the Islamic Shura Council of Southern California’s (“Shura Council”) motion…
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Splitting Cause of Action — The Entire Controversy Doctrine — “Enough Is Enough” — Good Quote — § 1927 Sanctions for Venue Transfer Motion by Plaintiff Who Had Just Won Appeal That Venue Was Proper

Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The "tortured procedural history" of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale ("B&V") agreed to arbitrate a legal malpractice claim that Plaintiff had asserted against B&V (the "Arbitration"). Fox ...
Great W. Mining & Mineral Co. v ADR Options, Inc., 2013 U.S. App. LEXIS 16439 (3d Cir. Aug. 8, 2013): The “tortured procedural history” of this case is well-known. (J.A. 6.) In 2002, Plaintiff and Brownstein and Vitale (“B&V”) agreed…
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Rule 19(b) — Indispensability of Necessary Party — Circuit Split over Standard of Appellate Review: Abuse of Discretion vs. De Novo

Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff's choice of parties or forum must give way because of an absent party's interest in the outcome of the action or involvement in t ...
Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff’s choice of parties or forum must give way because…
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Injunctions and Circuit Splits — Federal Court Should Not Issue Nationwide Injunction Where One Would Not Issue under the Law of Another Circuit

Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit. Principles of comity ...
Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the…
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Discovery Sanctions — Rule 37 — Meaning of “Substantially Justified” — Requirements for Civil Contempt and Adverse Factual Determinations — Court May Not Sanction Foreign Instrumentality for Violations Committed by Its Sovereign

Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 2013 U.S. Dist. LEXIS 110353 (S.D.N.Y. Aug. 2, 2013): On August 5, 2011, this Court entered a judgment in favor of Thai-Lao Lignite (Thailand) Co., Ltd. and Hongsa Lignite (Lao PDR) Co., Ltd. (collectively, "Petitioners"), enforcing a $56 million arb ...
Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 2013 U.S. Dist. LEXIS 110353 (S.D.N.Y. Aug. 2, 2013): On August 5, 2011, this Court entered a judgment in favor of Thai-Lao Lignite (Thailand) Co., Ltd. and…
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Arbitration Panel’s Award of Interest on One Part of Award Does Not Foreclose District Court from Awarding Interest on Other Parts as to Which Award Is Silent

Lagstein v. Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013): After undergoing major heart surgery in 2001, Dr. Zev Lagstein, a nuclear cardiologist, made a claim on a disability insurance policy he had purchased from Certain Underwriters at Lloyd's of London. Lloyd's pussyfooted for years only to ev ...
Lagstein v. Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013): After undergoing major heart surgery in 2001, Dr. Zev Lagstein, a nuclear cardiologist, made a claim on a disability insurance policy he had purchased…
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Unavailability of Designated Arbitral Forum Does Not Preclude Judicial Appointment of Substitute Forum — Apparent Caselaw Split as to Whether Designation of Forum Is “Integral” to Agreement to Arbitrate May Be Short-Lived

Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan's annual percentage rate and so violated the Truth in Lending Act, 15 U.S.C. §1606. The lender asked the district judge to stay the litigation and dire ...
Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan’s annual percentage rate and so violated the Truth…
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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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