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

Party Cannot Seek Expert Fees for Deposition Time of Expert Who Testifies for Free — Eight Factor Test to Determine Whether Expert Fee Request Is Reasonable — Inherent Power Sanctions for Invoice for Free Expert

Eastcott v. Hasselblad A/S, 892 F. Supp. 2d 587 (S.D.N.Y. 2012) (Rakoff, J.): Contrary to the apparent view of plaintiff and his counsel, a legal forum is not the place to play a shell game. The opportunity for such shenanigans arose when, during the course of this patent infringement lawsuit, plaintiff John Eastcot ...
Eastcott v. Hasselblad A/S, 892 F. Supp. 2d 587 (S.D.N.Y. 2012) (Rakoff, J.): Contrary to the apparent view of plaintiff and his counsel, a legal forum is not the place to play a shell game. The opportunity for such shenanigans…
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SLUSA Displaces Class Actions Alleging Breach of Variable Universal Life Insurance Contracts Where Fraud Is Alleged But Not Does Not Displace Pure Breach of Contract Claims

Freeman Investments, LP v. Pacific Life Ins. Co., 704 F.3d 1110 (9th Cir. 2012): The Securities Litigation Uniform Standards Act of 1998 (SLUSA) precludes state law class actions that allege misrepresentation or fraudulent omission in connection with the purchase or sale of covered securities. In this case we answer the question on ...
Freeman Investments, LP v. Pacific Life Ins. Co., 704 F.3d 1110 (9th Cir. 2012): The Securities Litigation Uniform Standards Act of 1998 (SLUSA) precludes state law class actions that allege misrepresentation or fraudulent omission in connection with the purchase or…
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Spoliation — “The Sanction Should Have Some Correlation to the Degree of Fault” — Dismissal Excessive Absent Grave Prejudice (Adverse Inference OK) — Business Records Exception Inapt If Record Made in Anticipation of Litigation

Byrd v. Alpha Alliance Ins. Corp., 2013 U.S. App. LEXIS 6398 (6th Cir. Mar. 26, 2013): Plaintiff Sam Byrd appeals the district court's grant of summary judgment in favor of Defendant Alpha Alliance Insurance Corporation ("Alpha Alliance") and dismissal of Byrd's fire-loss claim based on spoliation of evidence. While finding support for ...
Byrd v. Alpha Alliance Ins. Corp., 2013 U.S. App. LEXIS 6398 (6th Cir. Mar. 26, 2013): Plaintiff Sam Byrd appeals the district court’s grant of summary judgment in favor of Defendant Alpha Alliance Insurance Corporation (“Alpha Alliance”) and dismissal of…
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Authentication of Facebook Messages through Circumstantial Evidence

United States v. Grant, 2011 CCA LEXIS 217 (Ct. Crim. Mil. App. Oct. 17, 2011): A special court-martial composed of officer members convicted the appellant in accordance with his pleas of one specification of dereliction of duty by providing alcohol to an underage female and two specifications of a violation of a lawful general order, b ...
United States v. Grant, 2011 CCA LEXIS 217 (Ct. Crim. Mil. App. Oct. 17, 2011): A special court-martial composed of officer members convicted the appellant in accordance with his pleas of one specification of dereliction of duty by providing alcohol…
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District Courts Are Bound by the Law of Their Circuits “No Matter How Egregiously in Error They May Feel Their Own Circuit to Be” (Good Quote)

Jackson v. Evans, 2013 U.S. Dist. LEXIS 28893 (C.D. Cal. Mar. 1, 2013): Footnote 1. See Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999) (district courts must follow controlling circuit court precedent); Hasbrouck v. Texaco, Inc., 663 F.2d 950 (9th Cir. 1961) (district courts are bound by the law of their own circuit. "They are no ...
Jackson v. Evans, 2013 U.S. Dist. LEXIS 28893 (C.D. Cal. Mar. 1, 2013): Footnote 1. See Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir. 1999) (district courts must follow controlling circuit court precedent); Hasbrouck v. Texaco, Inc., 663 F.2d…
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Obtaining Immediate Review of Discovery Order by Dismissing Case with Prejudice — Motions for Reconsideration: Proper Use (Good Quote), Standard of Review, “New Evidence”

Reisinger v. City of Wilkes-Barre, 2013 U.S. App. LEXIS 6301 (3 Cir. Mar. 29, 2013): The District Court had jurisdiction to hear the case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Footnote 3. Ordinarily, a District Court's discovery-relate ...
Reisinger v. City of Wilkes-Barre, 2013 U.S. App. LEXIS 6301 (3 Cir. Mar. 29, 2013): The District Court had jurisdiction to hear the case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to hear this appeal pursuant…
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Waiver of Attorney-Client Privilege by Inadequate Privilege Log — Sale and Transfer of Assets, Including Privileged Material, Waives Privilege and Work Product — Court Enters 502(d) Order Confining Waiver to Instant Case

Solis v. Bruister, 2013 U.S. Dist. LEXIS 29108 (January 22, 2013): Plaintiff's Motion to Compel seeks an order compelling the production of documents subpoenaed by Plaintiff from DirecTV, the purchaser of Southeastern Ventures, Inc. f/k/a Bruister & Associates, Inc. These documents were stored on Defendant Amy Smith's Bruister & Associa ...
Solis v. Bruister, 2013 U.S. Dist. LEXIS 29108 (January 22, 2013): Plaintiff’s Motion to Compel seeks an order compelling the production of documents subpoenaed by Plaintiff from DirecTV, the purchaser of Southeastern Ventures, Inc. f/k/a Bruister & Associates, Inc. These…
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“Civil RICO Demands More Than a Straightforward Case of Malicious Prosecution” — Good Quote

Nowicki v. Delao, 2013 U.S. App. LEXIS 3201 (7th Cir. Feb. 8, 2013): David Nowicki and Barbara Tremel appeal from the dismissal of their claims under 42 U.S.C. § 1983 and 18 U.S.C. § 1962 against several parties who they say engaged in organized crime and committed civil rights violations by bringing a housing-discrimination action ag ...
Nowicki v. Delao, 2013 U.S. App. LEXIS 3201 (7th Cir. Feb. 8, 2013): David Nowicki and Barbara Tremel appeal from the dismissal of their claims under 42 U.S.C. § 1983 and 18 U.S.C. § 1962 against several parties who they…
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State Legislators Enjoy a Qualified Federal Legislative Privilege (Common Law/Rule 501) in Federal Civil Actions — Weaker Than Constitutional Privilege Afforded Federal Legislators — No Privilege in Criminal Cases

State of Fla. v. United States, 886 F. Supp. 2d 1301 (S.D. Fla. 2012): The issue in this proceeding is whether Florida state legislators have a privilege not to testify on matters at the core of their legislative functions. This order holds that they do have such a privilege and that it extends also to their staff members. This ...
State of Fla. v. United States, 886 F. Supp. 2d 1301 (S.D. Fla. 2012): The issue in this proceeding is whether Florida state legislators have a privilege not to testify on matters at the core of their legislative functions. This…
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Unsworn Expert Report May Be Considered on Summary Judgment If Expert Ratifies Report in Deposition

Zorn v. Mount Sinai Medical Center, Inc., 2012 WL 4320575, at *2 (S.D.N.Y. 2012): “Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed.R.Civ.P. 56(e), and cannot be used to defeat a summary judgment motion.” Berk v. St. Vincent's Hosp. and Medical Center, 380 F.S ...
Zorn v. Mount Sinai Medical Center, Inc., 2012 WL 4320575, at *2 (S.D.N.Y. 2012): “Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed.R.Civ.P. 56(e), and cannot be used to defeat…
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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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