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

Despite Bankruptcy Court’s Inability to Impose Criminal Contempt for Acts Outside Its Presence, Injunction of State Court Case Upheld — Elements of Civil Contempt — Civil vs. Criminal Contempt

In the Matter of Lothian Oil, Inc. (Grossman v. Belridge Grp.), 2013 U.S. App. LEXIS 9353 (5th Cir. May 8, 2013): Appellants/Cross-Appellees-the Anti-Lothian Bankruptcy Fraud Committee, Israel Grossman, and other individuals and entities-challenge a bankruptcy court's order enjoining their prosecutions of two state-court actions. The ba ...
In the Matter of Lothian Oil, Inc. (Grossman v. Belridge Grp.), 2013 U.S. App. LEXIS 9353 (5th Cir. May 8, 2013): Appellants/Cross-Appellees-the Anti-Lothian Bankruptcy Fraud Committee, Israel Grossman, and other individuals and entities-challenge a bankruptcy court’s order enjoining their prosecutions…
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26(a)(2)(B) Expert Reports — Permissible Supplementation or Clarification v. Impermissible Sandbagging — Point of Rule Is to Eliminate Need for Deposition and Risk of Ambush

Eiben v. Gorilla Ladder Co., 2013 U.S. Dist. LEXIS 59961 (E.D. Mich. April 22, 2013): The Sixth Circuit has held that "[u]nder Rule 26(a), a 'report must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the report must be sufficiently complete so as to shorte ...
Eiben v. Gorilla Ladder Co., 2013 U.S. Dist. LEXIS 59961 (E.D. Mich. April 22, 2013): The Sixth Circuit has held that “[u]nder Rule 26(a), a ‘report must be complete such that opposing counsel is not forced to depose an expert…
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Inherent Power Sanctions — No Bad Faith in Deciding to Dismiss Case, After Bad Result, for Purposes of Appellate “Panel Shopping” for Future Disputes (Good Quote)

Tex. Med. Providers Performing Abortion Servs. v. Lakey, 2013 U.S. App. LEXIS 3971 (5th Cir. Feb. 26, 2013): Pursuant to this panel's order that all subsequent appeals in this litigation be referred to us, the State of Texas here challenges the district court's denial of its motion to recover about $60,000 in attorneys' fees from the ap ...
Tex. Med. Providers Performing Abortion Servs. v. Lakey, 2013 U.S. App. LEXIS 3971 (5th Cir. Feb. 26, 2013): Pursuant to this panel’s order that all subsequent appeals in this litigation be referred to us, the State of Texas here challenges…
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Early Reports from Expert That Are Not Drafts of 26(a)(2)(B) Report Are Not Protected from Discovery — Interrogatories Seeking Expert Information Prior to Expert Disclosure Date Set by Court Are Premature

Amco Ins. Co. v. Mark’s Custom Signs, Inc., 2013 U.S. Dist. LEXIS 53803 (D. Kan. April 16, 2013): This is an insurance subrogation claim brought by Plaintiff against the named Defendants resulting from a fire occurring on April 3, 2009, in a building insured by Plaintiff. (Doc. 31, at 2.) Following payment by Plaintiff, its insured "a ...
Amco Ins. Co. v. Mark’s Custom Signs, Inc., 2013 U.S. Dist. LEXIS 53803 (D. Kan. April 16, 2013): This is an insurance subrogation claim brought by Plaintiff against the named Defendants resulting from a fire occurring on April 3, 2009,…
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RICO Pleading & Iqbal — Plausibility Does Not Require Negating Every Improbable Alternate Inference — Statute of Limitations — Mere Hunch ≠ Grounds to Investigate — Failure to Find Lawsuit May Not Reflect Lack of Diligence

Cohen v. S.A.C. Trading Corp., 2013 U.S. App. LEXIS 6798 (2d Cir. April 3, 2013): Patricia and Steven were married in 1979. At the time, Steven was a trader at Gruntal & Co. ("Gruntal"). In January 1986, Steven created S.A.C. Trading Corporation ("SAC"), and served as its President, while his brother, defendant Donald, served as Treasur ...
Cohen v. S.A.C. Trading Corp., 2013 U.S. App. LEXIS 6798 (2d Cir. April 3, 2013): Patricia and Steven were married in 1979. At the time, Steven was a trader at Gruntal & Co. (“Gruntal”). In January 1986, Steven created S.A.C.…
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§ 1927 Sanctions for Bad Faith Opening Statement

Sabatine v. Paul Revere Life Ins. Co., 2013 U.S. App. LEXIS 8579 (6th Cir. April 26, 2013): Sabatine filed a lawsuit in the Ohio courts against Paul Revere Life Insurance Co. (Paul Revere), alleging that Paul Revere engaged in bad faith and breached a disability insurance policy by terminating Sabatine's disability benefits. Sabatine ...
Sabatine v. Paul Revere Life Ins. Co., 2013 U.S. App. LEXIS 8579 (6th Cir. April 26, 2013): Sabatine filed a lawsuit in the Ohio courts against Paul Revere Life Insurance Co. (Paul Revere), alleging that Paul Revere engaged in bad…
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May a Testifying Expert’s Assistants, Who Are Also Consulting Experts, Be Deposed to Test the Nature and Confines of the Testifying Expert’s Testimony?

Apple Inc. v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 47124 (N.D. Cal. April 1, 2013): Now pending before the Court is the parties' joint discovery letter brief concerning whether Apple should be compelled to produce discovery related to the work of two assistants to Apple's testifying survey expert. (Dkt. No. 113.) Specifically, Amazon ...
Apple Inc. v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 47124 (N.D. Cal. April 1, 2013): Now pending before the Court is the parties’ joint discovery letter brief concerning whether Apple should be compelled to produce discovery related to the work…
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Sanctions — Neither Prior Sanction Nor Explicit Observation of Frivolousness Affords Sufficient Due Process to Sustain Sua Sponte Rule 11 Sanction — Due Process Challenge Review Is Plenary, Not Abuse-of-Discretion

O.R. v. Hutner, 2013 U.S. App. LEXIS 2760 (3d Cir. Feb. 8, 2013): Appellant O.R. ("O.R.") and his attorney, Rotimi A. Owoh ("Mr. Owoh"), (collectively "Appellants"), appeal the October 13, 2011 and January 27, 2012 Orders of the District Court, denying various post-judgment motions and imposing a monetary sanction against Mr. Owoh under ...
O.R. v. Hutner, 2013 U.S. App. LEXIS 2760 (3d Cir. Feb. 8, 2013): Appellant O.R. (“O.R.”) and his attorney, Rotimi A. Owoh (“Mr. Owoh”), (collectively “Appellants”), appeal the October 13, 2011 and January 27, 2012 Orders of the District Court,…
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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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Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

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

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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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