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

Experts — Degree of Appropriate Lawyer Involvement in Drafting Expert Report — “Commandeering” Report Lifts Work Product Protection for Drafts and Attorney-Expert Communications

Gerke v. Travelers Cas. Ins. Co. of Am., 2013 U.S. Dist. LEXIS 22254 (D. Or. Feb. 19, 2013): The 2010 amendments added work-product protection for drafts of expert's reports and expert's "preliminary reports" under Rule 26(b)(4)(B). Advisory Committee Notes, 2010 Amendments, comments to subdivision (b)(4). The amendments also protect fr ...
Gerke v. Travelers Cas. Ins. Co. of Am., 2013 U.S. Dist. LEXIS 22254 (D. Or. Feb. 19, 2013): The 2010 amendments added work-product protection for drafts of expert’s reports and expert’s “preliminary reports” under Rule 26(b)(4)(B). Advisory Committee Notes, 2010…
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Outside of RICO and the Clayton Act, “by Reason of” Frequently Connotes But-For, Rather Than Proximate, Causation

UMG Recordings, Inc. v. Veoh Networks, Inc., 2013 U.S. App. LEXIS 5100 (9th Cir. Mar. 14, 2013): Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one of the world's largest recorded music and music publishing companies, and includes record lab ...
UMG Recordings, Inc. v. Veoh Networks, Inc., 2013 U.S. App. LEXIS 5100 (9th Cir. Mar. 14, 2013): Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one…
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When Does a Claim “Relate to” a Contract for Purposes of the Contract’s Forum Selection Clause? — Standards — Meaning of “Related to”

Bailey v. ERG Enters., LP, 705 F.3d 1311 (11th Cir. 2013): Plaintiffs-Appellants (the Buyers) each sought to own a piece of paradise. To that end, they purchased undeveloped lots in a planned resort in the Bahamas. Their purchase contracts contain a provision that requires all disputes to be litigated in the Bahamas. Many of the Buyers ...
Bailey v. ERG Enters., LP, 705 F.3d 1311 (11th Cir. 2013): Plaintiffs-Appellants (the Buyers) each sought to own a piece of paradise. To that end, they purchased undeveloped lots in a planned resort in the Bahamas. Their purchase contracts contain…
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Denial of Summary Judgment and Two Directed Verdict Motions Does Not Insulate Counsel from § 1927 Sanctions — De Novo Review of Legal Analysis and Statutory Interpretation

Holland v. Standley & Assocs., LLC, 2013 U.S. App. LEXIS 4881 (10th Cir. Mar. 12, 2013): [Plaintiffs’ counsel] argues that the district court misapplied the principles governing imposition of attorney's fees sanctions under § 1927 when the court decided that he proceeded to trial without plausible evidence to support the abusive-lang ...
Holland v. Standley & Assocs., LLC, 2013 U.S. App. LEXIS 4881 (10th Cir. Mar. 12, 2013): [Plaintiffs’ counsel] argues that the district court misapplied the principles governing imposition of attorney’s fees sanctions under § 1927 when the court decided that…
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Does an Attorney’s Selection of Documents Shown to a Witness Confer Work Product Protection on the Cache of Documents? Uncertain status of Sporck v. Peil

Northern Natural Gas Co. v. Approximately 9117.53 Acres, 2013 U.S. Dist. LEXIS 34958 (D. Kan. Mar. 5, 2013) (magistrate judge’s decision): The parties and the court have gathered numerous federal court cases from this district on the issue of whether an attorney's selection of documents shown to a witnesses to prepare that witness for ...
Northern Natural Gas Co. v. Approximately 9117.53 Acres, 2013 U.S. Dist. LEXIS 34958 (D. Kan. Mar. 5, 2013) (magistrate judge’s decision): The parties and the court have gathered numerous federal court cases from this district on the issue of whether…
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Sanctions — No Reversible Error in Sanctioning Counsel under Rule 11 for Statements at Trial Not Advocating Prior Written Submission Where Conduct Clearly Sanctionable under Inherent Power

Balerna v. Gilberti, 2013 U.S. App. LEXIS 4069 (1st Cir. Feb. 27, 2013): Finally, Coppola makes a blanket challenge to his admonishment under Federal Rule of Civil Procedure 11(b): While the court cited Coppola's conduct at trial as the reason for his admonishment, Rule 11(b) allows sanctions only for misconduct in presenting "a ple ...
Balerna v. Gilberti, 2013 U.S. App. LEXIS 4069 (1st Cir. Feb. 27, 2013): Finally, Coppola makes a blanket challenge to his admonishment under Federal Rule of Civil Procedure 11(b): While the court cited Coppola’s conduct at trial as the reason…
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Inadmissibility of Bankruptcy Examiner’s Report

In re Refco Inc. Secs. Litig., (Krys v. Sugrue), No. 07-MD-1902 (S.D.N.Y. Mar. 11, 2013) (Report and Recommendation of Special Master Daniel J. Capra): [A] Bankruptcy Examiner’s report is hearsay when offered, as here, to prove the truth of the facts and conclusions propounded in it. And courts routinely find that there is no hear ...
In re Refco Inc. Secs. Litig., (Krys v. Sugrue), No. 07-MD-1902 (S.D.N.Y. Mar. 11, 2013) (Report and Recommendation of Special Master Daniel J. Capra): [A] Bankruptcy Examiner’s report is hearsay when offered, as here, to prove the truth of the…
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Admissibility of Privilege Logs

Siemens v. Seagate Technology, 2009 U.S. Dist. LEXIS 132522 (C.D. Cal. April 27, 2009): a. Admissibility of the Privilege Logs In conjunction with its argument regarding the joint invention of Parkin and Heim, Siemens argues that the Court erred in admitting the IBM privilege logs (Tr. Exhibits 756 and 757) over Siemens ...
Siemens v. Seagate Technology, 2009 U.S. Dist. LEXIS 132522 (C.D. Cal. April 27, 2009): a. Admissibility of the Privilege Logs In conjunction with its argument regarding the joint invention of Parkin and Heim, Siemens argues that the Court erred in…
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Expert Discovery — Notes, Outlines, Lists, Letters, Emails, and Memoranda Prepared by Expert or Non-Attorney Concerning Draft Report Are Not Protected under 2010 Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 909 (D. Colo. Jan. 3, 2013): Respondents contend that, following the December 7, 2012 production, they continue to withhold (1) outlines of draft reports; (2) memoranda addressed to or from an attorney; (3) email communications copying an attorney but addressing that attorney direct ...
Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 909 (D. Colo. Jan. 3, 2013): Respondents contend that, following the December 7, 2012 production, they continue to withhold (1) outlines of draft reports; (2) memoranda addressed to or from an…
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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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