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

Section 11 Claim Requires Only Allegations of Objective Falsity — Not That Defendants Disbelieved Statements at Time — Circuit Split — Disclaimer in § 11 Complaint Does Not Obviate 9(b) If Fraud Alleged

Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11 of the Securities Act of 1933, 15 U.S.C. § 77k (2010), against Defendants Omnicare, Inc., its ...
Indiana State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 2013 U.S. App. LEXIS 10385 (6th Cir. May 23, 2013): Plaintiffs, all Omnicare investors, appeal the dismissal of their securities suit under § 11…
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Email Evidence — Mere Fact That Email Is Kept in Routine Course of Business Operations Does Not Render It Admissible as a Business Record

United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were "counterfeit" and "fake." Although the district court determined that the e-mails were introduced ...
United States v. Cone, 714 F.3d 197 (4th Cir. 2012): D. Introduction of Customer E-Mails Cone and Zhao last argue that the district court erred in admitting certain e-mails from JDC customers complaining that JDC products were “counterfeit” and “fake.”…
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Appellate Court Looks Skeptically on Sanction Issued Sua Sponte without Explanation As to Why It Was Necessary — Improper Purpose vs. Harmful Effect — No Inherent Power Sanction If Rule 11 Apt

Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court's written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus's "having filed the irrelevantly scurrilous e-mail" that graphically documented Employee A ...
Kenyon Int’l Emergency Servs. Inc. v. Malcolm, 2013 U.S. App. LEXIS 9704 (5th Cir. May 14, 2013): The district court’s written order does not specify the basis for sanctions, although its oral statement indicates they were imposed for Faubus’s “having…
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District Court Cannot Dismiss with Prejudice under Rule 12(b)(1) Because by Definition It Lacks Jurisdiction over the Claim — Court May Dismiss with Prejudice under 12(b)(6) for Lack of Statutory, But Not Article III, Standing

Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss a claim with prejudice to the merits of that claim. We hold that it may not, and therefore VACATE and REMA ...
Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 2013 U.S. App. LEXIS 10572 (5th Cir. May 24, 2013): This case presents the question whether, under Federal Rule of Civil Procedure 12(b)(1), a district court may dismiss…
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More Rigorous Abuse of Discretion Review Applied to Civil Contempt Citation — Standards for Civil Contempt — Corporation/Appellee That Fails to Retain Counsel Defaults on Appeal But Court Here Still Proceeds to Merits

Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we review the contempt finding "under an abuse of discretion standard that is more rigorous than usual, and we con ...
Liberty Propane L.P. v. Fehely, 2013 U.S. App. LEXIS 10617 (2d Cir. May 28, 2013): Where, as here, a district court holds a party in civil contempt and imposes sanctions for a bad-faith violation of a prior court order, we…
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A Sine Qua Non of Spoliation Is That the Alleged Spoliator Be on Notice That the Evidence Is Potentially Relevant to Litigiation

Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt's claims against Malvern--specifically, Wyatt's copyright infringement claims--required Wyatt to proffer some evidence that Malvern's software was substantially similar to Dynamics. L.A. Printex Indus., Inc. v. Aeropostal ...
Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt’s claims against Malvern–specifically, Wyatt’s copyright infringement claims–required Wyatt to proffer some evidence that Malvern’s software was substantially similar to…
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Severe vs. Lesser Sanctions — Fifth Circuit Standards for Each — Deeming Facts Admitted Is a Lesser Sanction That Need Only Be “Just and Fair”

Alexsam, Inc. v. IDT Corp., 2013 U.S. App. LEXIS 10009 (Fed. Cir. May 20, 2013): In January 2011, following the close of discovery, Alexsam moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, alleging that IDT had failed to disclose information suggesting that the miscellaneous systems infringe Alexsam's pat ...
Alexsam, Inc. v. IDT Corp., 2013 U.S. App. LEXIS 10009 (Fed. Cir. May 20, 2013): In January 2011, following the close of discovery, Alexsam moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, alleging that…
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Admissibility of Intrinsic vs. Extrinsic Evidence of Other Bad Acts under Federal Rule of Evidence 404(b) — ABA Judicial Recusal Standards

United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013): Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy, filing false tax returns, and several other related crimes. The charges resulted f ...
United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013): Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy,…
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Once Arbitration Compelled, District Court Lacks Ability to Stay It — The Question Is for the Arbitrator

C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that "this Court should stay the arbitration until the Supreme Court clarifies the standard of review for vacating [arbitration] clause construction awards." ( ...
C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that “this Court should stay the arbitration until the Supreme Court clarifies the standard…
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Sanctions: If Rule or Statutory Power (Including § 1927) Available, Court Should Not Invoke Inherent Power — D.C. Circuit State of Mind for § 1927 Unsettled But Clear & Convincing Proof Required — Law Firm Vicarious Liability

Animal Welfare Inst. v. Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C. Mar. 29, 2013): B. Inherent Authority In addition to powers deriving from rule or statute, courts also have inherent authority to sanction litigation misconduct when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive ...
Animal Welfare Inst. v. Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C. Mar. 29, 2013): B. Inherent Authority In addition to powers deriving from rule or statute, courts also have inherent authority to sanction litigation misconduct when a party…
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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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