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

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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Is an Appeal Bond Limited to the Costs Enumerated in Fed.R.App.P. 39(e) or May It Include Attorneys’ Fees? — Circuit Split — Factors in Determining Whether Appeal Bond Is Needed

Heekin v. Anthem, Inc., 2013 U.S. Dist. LEXIS 26700 (S.D. Ind. Feb. 27, 2013): Federal Rule of Appellate Procedure 7 states: "In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal." Rule 7 exists to protect the rights of ...
Heekin v. Anthem, Inc., 2013 U.S. Dist. LEXIS 26700 (S.D. Ind. Feb. 27, 2013): Federal Rule of Appellate Procedure 7 states: “In a civil case, the district court may require an appellant to file a bond or provide other security…
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Psychotherapist-Patient Privilege, Like Attorney-Client Privilege, Survives Death of Privilege Holder

Awalt v. Marketti, 287 F.R.D. 409 (N.D. Ill. 2012): A threshold issue of whether Mrs. Awalt can assert the psychotherapist-patient privilege on behalf of her deceased husband arises. Whether the psychotherapist-patient privilege survives the death of the patient, or is otherwise affected by the patient's death, is a matter that has not ...
Awalt v. Marketti, 287 F.R.D. 409 (N.D. Ill. 2012): A threshold issue of whether Mrs. Awalt can assert the psychotherapist-patient privilege on behalf of her deceased husband arises. Whether the psychotherapist-patient privilege survives the death of the patient, or is…
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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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