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

Non-Testifying Expert Who Submits Declaration on Unsuccessful Summary Judgment Motion Is Subject to Deposition Concerning the Subject Matter of the Declaration — Also on Opinions Formed as Percipient Witness

Positive Techs., Inc. v. Sony Electronics, Inc., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. April 5, 2013): Plaintiff and Defendant have filed a joint statement regarding a discovery dispute over the deposition of Plaintiff's expert, Dr. Alan Sobel. See Dkt # 431. Plaintiff seeks a protective order barring Defendant from questioning Sobel ...
Positive Techs., Inc. v. Sony Electronics, Inc., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. April 5, 2013): Plaintiff and Defendant have filed a joint statement regarding a discovery dispute over the deposition of Plaintiff’s expert, Dr. Alan Sobel. See Dkt…
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Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 60739 (D. Colo. April 26, 2013): First, because it is the intention of the rules committee to protect the mental impressions and legal theories of a party's attorney, not its expert, notes, outlines, lists, letters and memoranda prepared by an expert or non-attorney con ...
Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 60739 (D. Colo. April 26, 2013): First, because it is the intention of the rules committee to protect the mental impressions and legal theories of a party’s attorney, not its expert,…
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Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013): Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court's1 orders (1) striking the officers' affidavits submitted in resisting summary judgment, and (2) granting summary judgment to the Kans ...
Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013): Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court’s1 orders (1) striking the officers’ affidavits submitted in…
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Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013): John Ennis, proceeding pro se, appeals the district court's grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the "plaintiffs") as a sanction against Ennis, the defendant, in their action filed pursuant to the Anticybersquatti ...
Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013): John Ennis, proceeding pro se, appeals the district court’s grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the “plaintiffs”)…
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Sanction Consisting of Award of Attorney’s Fees Not Yet Reduced to a Sum Certain Is Not Appealable

Webb v. Morella, 2013 U.S. App. LEXIS 7393 (5th Cir. April 12, 2013): The Webbs raise a number of issues relating to the district court's decision to impose sanctions. While the court granted Morella's Rule 11 motion and stated that it would award $200 per hour in attorneys' fees for work relating to the motion to dismiss, the court als ...
Webb v. Morella, 2013 U.S. App. LEXIS 7393 (5th Cir. April 12, 2013): The Webbs raise a number of issues relating to the district court’s decision to impose sanctions. While the court granted Morella’s Rule 11 motion and stated that…
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Spoliation — Refusal to Give Mandatory Adverse Inference Instruction Is Consistent with Refusal to Grant Default Judgment (or Dismissal) — Permissive Instruction Upheld

Flagg v. City of Detroit, 2013 U.S. App. LEXIS 8361 (6th Cir. April 25, 2013): Plaintiffs challenge the district court's decision to impose a permissive, as opposed to mandatory, adverse inference sanction against the City for destroying "e-mails sent and received by four former high-ranking Detroit officials, including . . . ...
Flagg v. City of Detroit, 2013 U.S. App. LEXIS 8361 (6th Cir. April 25, 2013): Plaintiffs challenge the district court’s decision to impose a permissive, as opposed to mandatory, adverse inference sanction against the City for destroying “e-mails sent and…
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RICO — Fraudulent Appraisal Sustains Mail Fraud-Based § 1962(c) Claim Alleging Scheme to Defraud Homeowner into Taking Out Unsustainable Mortgage, Leading to Foreclosure and Bankruptcy — Proximate Cause Is Not Same as Sole Cause (Good Quote)

Wallace v. Midwest Fin. Mortg. Servs., Inc., 2013 U.S. App. LEXIS 8111 (6th Cir. April 23, 2013): This is a subprime mortgage case brought by the borrower, Harold Wallace, against the lender, MortgageIT, Inc. ("MortgageIT"), the mortgage broker, Midwest Financial & Mortgage Services, Inc. ("Midwest Financial"), the broker's two principa ...
Wallace v. Midwest Fin. Mortg. Servs., Inc., 2013 U.S. App. LEXIS 8111 (6th Cir. April 23, 2013): This is a subprime mortgage case brought by the borrower, Harold Wallace, against the lender, MortgageIT, Inc. (“MortgageIT”), the mortgage broker, Midwest Financial…
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Spoliation Sanctions — No Bad Faith Required for Adverse Inference If Preservation Is Required by Statute or Regulation and Harmed Party Is within Class Protected by That Provision — Even Adverse Inference Insufficient to Avoid Summary Judgment

Grosdidier v. Broad. Bd. of Governors, 2013 U.S. App. LEXIS 4706 (D.C. Cir. Mar. 8, 2013): Camille Grosdidier has worked in the French to Africa Service of the Voice of America ("VOA") since 1987, since 1991 as a GS 12. When she did not receive a promotion to Senior Editor GS 13 in 2006, she sued the Chairman of the Broadcasting Board ...
Grosdidier v. Broad. Bd. of Governors, 2013 U.S. App. LEXIS 4706 (D.C. Cir. Mar. 8, 2013): Camille Grosdidier has worked in the French to Africa Service of the Voice of America (“VOA”) since 1987, since 1991 as a GS 12.…
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By Bringing Bad Faith Action, Insured Places in Issue the Conduct of Both Sides of Litigation — Rule 68 — If Court Does Not Award Costs, Costs Should Be Excluded in Valuing the Judgment — § 1927 Sanctions on Appeal Though Properly Denied Below

Charyulu v. Calif. Cas. Indem. Exch., 2013 U.S. App. LEXIS 7328 (9th Cir. April 11, 2013): Plaintiff Cindy Charyulu, special administrator of the Estate of Fatu Taputu, appeals the judgment, after a jury trial, entered in favor of the insurance company in her action claiming that the insurance company was guilty of bad faith in failing ...
Charyulu v. Calif. Cas. Indem. Exch., 2013 U.S. App. LEXIS 7328 (9th Cir. April 11, 2013): Plaintiff Cindy Charyulu, special administrator of the Estate of Fatu Taputu, appeals the judgment, after a jury trial, entered in favor of the insurance…
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American Pipe Tolls Statute of Limitations for Subsequent Class Action — Not Just Individidual Action — If Prior Class Action Was Disposed of Without Resolution of Class Issues

In re: Vertrue Inc. Marketing & Sales Practices Litigation, 2013 U.S. App. LEXIS 7693 (6th Cir. April 16, 2013): This matter arises from a multidistrict litigation proceeding, encompassing thirteen putative class action suits challenging the sales and marketing practices of Vertrue, Inc. and Adaptive Marketing, LLC. On April 16, 2010, th ...
In re: Vertrue Inc. Marketing & Sales Practices Litigation, 2013 U.S. App. LEXIS 7693 (6th Cir. April 16, 2013): This matter arises from a multidistrict litigation proceeding, encompassing thirteen putative class action suits challenging the sales and marketing practices of…
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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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