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

While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision

United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But when intervening higher authori ...
United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing…
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RICO — Enterprise of 2 Companies and Personnel Fails — Acts Were Taken by Members Conducting Their Own Affairs, Not Enterprise’s — Mere Violation of Predicate Acts Insufficient — Good Quotes

United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund), an employee benefit plan that provides healthcare benefits to its participants, is ...
United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund),…
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Failure to Raise Spoliation Issue at Summary Judgment Stage — Not until Post-Trial Motions — Is Untimely and Bars Appellate Review

Smith v. BP Am., Inc., 2013 U.S. App. LEXIS 13656 (11th Cir. July 5, 2013): D. Motion to Alter or Amend Judgment "The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact." In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). "[A] Rule 59(e) motion [cannot be u ...
Smith v. BP Am., Inc., 2013 U.S. App. LEXIS 13656 (11th Cir. July 5, 2013): D. Motion to Alter or Amend Judgment “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or…
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Arbitration — Current State of the Circuit Split on Manifest Disregard — What “Manifest Disregard” Requires, If It Does Survive: Knowing, Intentional, Explicit Refusal to Apply the Law

Bartlett Grain Co. v. Sunburst Farms P’ship, 2013 U.S. Dist. LEXIS 94140 (D. Kan. July 5, 2013): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground on which to overturn an arbitration award. According to the Second, Sixth (in an unpublished decision) and Ninth C ...
Bartlett Grain Co. v. Sunburst Farms P’ship, 2013 U.S. Dist. LEXIS 94140 (D. Kan. July 5, 2013): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground…
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7th Circuit OKs Juror Questions — How Long a Trial Can a Juror Comprehend? — Party Need Not Disclose Opposing Expert per Rule 26(a)(2)(A) — Invited Error — State of Mind Attack & Hearsay — Once Expert Disclosed, Can’t Become Consulting Expert

SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009): Waste Management, Inc., grew at an average annual rate of 26% from 1979 through 1991. When growth fell off, James Koenig, its Chief Financial Officer, decided to improve appearances. He devised several accounting strategies that a jury found to be fraudulent. The district judge imposed a civi ...
SEC v. Koenig, 557 F.3d 736 (7th Cir. 2009): Waste Management, Inc., grew at an average annual rate of 26% from 1979 through 1991. When growth fell off, James Koenig, its Chief Financial Officer, decided to improve appearances. He devised…
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Waiver by Providing Privileged Material to Testifying Expert — Standards: Clear and Convincing Evidence, Clearly Erroneous — Appellate Deference to Credibility Findings & Its Limits

United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to establish that Bolander had "engaged or attempted to engage in . . . child molestat ...
United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013): To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to…
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Judicial Estoppel — Principles — Good Quotes

Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent "the perversion of the judicial process." In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). The doctrine protects the courts from being "'manipulated by ch ...
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 2013 U.S. App. LEXIS 12728 (7th Cir. June 21, 2013): Judicial estoppel is a flexible equitable doctrine designed to prevent “the perversion of the judicial process.” In re Cassidy, 892 F.2d 637,…
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Expert Precluded from Testifying Due to Deficiencies Evident in Report — Not Curable by “Supplementation”

Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that medical staff at the Veterans Affairs Medical Center ("VA Medical Center") acted negligen ...
Campbell v United States, 470 Fed. Appx. 153 (4th Cir. 2012): Annette Campbell filed a wrongful death action against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (2006), alleging that…
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Default Judgments Are Discretionary and Not Favored — Factors for the Court’s Consideration

Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770 (B.A.P. 9th Cir. 2006). Obtaining a default judgment of nondishcargeability of a claim is a two-ste ...
Americredit Fin. Servs. v. Glennon (In re Jeffers), 2012 Bankr. LEXIS 6170 (E.D. Cal. Oct. 10, 2012): Federal Rule of Civil Procedure 55 and Federal Rule of Bankruptcy Procedure 7055 govern default judgments. In re McGee, 359 B.R. 764, 770…
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RICO Forfeiture — Where Lawyer/Racketeer Deposits Illicit Proceeds of Ponzi Scheme in Firm’s Bank Account, Commingling It with Legitimate Revenues, Entire Account at Time He Is Charged Is Not Forfeitable

In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucr ...
In re Rothstein, , 2013 U.S. App. LEXIS 11793 (11th Cir. June 12, 2013): A number of criminal statutes within the Federal Code mandate that a defendant, when convicted, forfeit to the United States as part of his sentence the…
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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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