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

Securities — Predictions: “The Future Is Shrouded in Uncertainty” — Limited Utility of Confidential Sources — Recantation, Recidivism and Mandatory Sanctions under the PSLRA (Good Quotes — Judge Posner)

City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009. The key allegations of the first amended complaint (amended early in the pretrial proceedings) were as follows. On April 2 ...
City of Livonia Employees’ Retirement Sys. v. Boeing Co., 2013 U.S. App. LEXIS 5975 (7th Cir. Mar. 26, 2013): The suit is on behalf of all persons who bought common stock of Boeing between May 4 and June 22, 2009.…
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Experts — “The Trial Court Ought Not Transform a Daubert Hearing into a Trial on the Merits” — Daubert in Bench Trials (Good Quote)

In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court's decision to admit expert testimony for abuse of discretion. As read by Daubert, Rule 702 requires trial courts to ensure that proffered expert testimo ...
In re Texas Grand Prairie Hotel Realty, LLC (Wells Fargo Bank N.A. v. Texas Grand Prairie Hotel Realty, LLC), 2013 U.S. App. LEXIS 4514 (5th Cir. March 1, 2013): We review a trial court’s decision to admit expert testimony for…
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Fraud, Fiduciary Duty, Negligent Misrepresentation, and Contract Claims Duplicative of Legal Malpractice Claim—Arising from Same Facts and Seeking Same Damages—Are Barred under New York Law

Case 1: Amusement Indus., Inc. v. Buchanan Ingersoll & Rooney, P.C., 2013 U.S. Dist. LEXIS 8569 (S.D.N.Y. Jan 22, 2013) (R&R): [T]here is a "longstanding body of New York case law that bars other claims for relief relying on the same facts and seeking the same relief as [a legal] malpractice claim." Amusement Indus., Inc., 2012 ...
Case 1: Amusement Indus., Inc. v. Buchanan Ingersoll & Rooney, P.C., 2013 U.S. Dist. LEXIS 8569 (S.D.N.Y. Jan 22, 2013) (R&R): [T]here is a “longstanding body of New York case law that bars other claims for relief relying on the…
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Securities — Is There a Continuing Fraud Exception to the Statute of Repose? Caselaw Split

Carlucci v. Han, 886 F. Supp. 2d 497 (E.D. Va. 2012): 1. Section 10(b) Claim Section 10(b) claims are subject to a two-year statute of limitations and a five-year statute of repose. 28 U.S.C. § 1658(b). A statute of limitations is "[a] law that bars claims after a specified period; specif[ically], a statute establishi ...
Carlucci v. Han, 886 F. Supp. 2d 497 (E.D. Va. 2012): 1. Section 10(b) Claim Section 10(b) claims are subject to a two-year statute of limitations and a five-year statute of repose. 28 U.S.C. § 1658(b). A statute of limitations…
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Rule 11 Sanctions Imposed for Suing a Dog — Hard to Prove “Meeting of the Minds”

Hammary v. Soles, 2013 U.S. Dist. LEXIS 40033 (M.D.N.C. Mar. 22, 2013): Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on later-dismissed cocaine charges. The complaint adequately alleges that the officer who s ...
Hammary v. Soles, 2013 U.S. Dist. LEXIS 40033 (M.D.N.C. Mar. 22, 2013): Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on…
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Securities — Section 11 — Where Multiple Offerings of Securities, Plaintiffs Must Satisfy Twiqbal in Alleging Their Shares Are Traceable to a Particular Offering — Error to Consider Extrinsic Evidence on This Issue (12(b)(6), Not 12(b)(1), Issue)

In re Century Aluminum Company Secs. Litig., 704 F.3d 1119 (9th Cir. 2013): Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, provides a cause of action to any person who buys a security issued under a materially false or misleading registration statement. Plaintiffs need not have purchased shares in the offering made unde ...
In re Century Aluminum Company Secs. Litig., 704 F.3d 1119 (9th Cir. 2013): Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, provides a cause of action to any person who buys a security issued under a…
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Unretained Experts — Failure to Identify Specific Facts or Opinions = Inadequate Disclosure — Adversary Must Provide Disclosure for Cross-Designation of Expert If Evidence Different from Proponent’s Designation or Witness’s Deposition

Shepeard v. Labette Cnty. Med. Ctr., 2013 U.S. Dist. LEXIS 31381 (D. Kan. Mar. 7, 2013): Before the Court is Plaintiff's Motion to Compel seeking supplemental information regarding Defendant's non-retained expert witness disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(C). Having reviewed the submissions of the parties, including the wi ...
Shepeard v. Labette Cnty. Med. Ctr., 2013 U.S. Dist. LEXIS 31381 (D. Kan. Mar. 7, 2013): Before the Court is Plaintiff’s Motion to Compel seeking supplemental information regarding Defendant’s non-retained expert witness disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(C). Having reviewed the…
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Elements and Burden of Proof of a Whistleblower Claim under Sarbanes-Oxley

Bechtel v. Administrative Review Bd., U.S. Dep't of Labor, 2013 U.S. App. LEXIS 4539 (2d Cir. Mar. 5, 2013): Section 806 of the Sarbanes-Oxley Act, 15 U.S.C. § 1514A, seeks to combat what Congress identified as a corporate "culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper ...
Bechtel v. Administrative Review Bd., U.S. Dep’t of Labor, 2013 U.S. App. LEXIS 4539 (2d Cir. Mar. 5, 2013): Section 806 of the Sarbanes-Oxley Act, 15 U.S.C. § 1514A, seeks to combat what Congress identified as a corporate “culture, supported…
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Cunningham Bars Interlocutory Appeal of Sanctions under Rule 11, § 1927 and Inherent Power, Not Just Rule 37 — What Is a “Relief Defendant” — When Appeal Is Inextricably Bound Up with an Injunction

SEC v. Smith, 2013 U.S. App. LEXIS 5325 (2d Cir. Mar. 18, 2013): Appellants, the David L. and Lynn A. Smith Irrevocable Trust U/A 8/04/04 (the "Trust") and various individuals, appeal from Magistrate Judge Homer's order directing the disposition of the Trust's assets and sanctioning: (i) Lynn Smith, a defendant in the action, and (ii) n ...
SEC v. Smith, 2013 U.S. App. LEXIS 5325 (2d Cir. Mar. 18, 2013): Appellants, the David L. and Lynn A. Smith Irrevocable Trust U/A 8/04/04 (the “Trust”) and various individuals, appeal from Magistrate Judge Homer’s order directing the disposition of…
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Administrative Closing of Case vs. Dismissal without Prejudice: Effect on Jurisdiction — “Evident Partiality” as Ground to Overturn Arbitration Award Is Narrower Than Judicial Recusal Standard — Mere Appearance of Bias Insufficient

Freeman v. Pittsburgh Glass Works, LLC, 2013 U.S. App. LEXIS 4561 (3d Cir. Mar. 6, 2013): James Freeman recently lost an arbitration dispute. Soon thereafter, he discovered that the arbitrator had received contributions for a judicial campaign from PPG Industries, the defendants' minority owner. Freeman filed a motion to vacate the arbi ...
Freeman v. Pittsburgh Glass Works, LLC, 2013 U.S. App. LEXIS 4561 (3d Cir. Mar. 6, 2013): James Freeman recently lost an arbitration dispute. Soon thereafter, he discovered that the arbitrator had received contributions for a judicial campaign from PPG Industries,…
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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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