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

Issues Not Raised in Appellate Brief, Even Pro Se, Waived — Meaning of “Abuse of Discretion” in Second Circuit

Chien v. BarronCapital Advisors, LLC, 2012 U.S. App. LEXIS 26813 (2d Cir. Jan. 30, 2012): "We review an award of Rule 11 sanctions for abuse of discretion." Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir. 2010) (per curiam) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). "An 'abuse of discretion' o ...
Chien v. BarronCapital Advisors, LLC, 2012 U.S. App. LEXIS 26813 (2d Cir. Jan. 30, 2012): “We review an award of Rule 11 sanctions for abuse of discretion.” Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir.…
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RICO — Mail Fraud — Proving Reliance Remains Essential Where It Is Integral to Plaintiff’s Theory of Causation

Hoffman v. Zenith Ins. Co., 487 F. App’x 365 (9th Cir. 2012): A RICO plaintiff must establish standing to sue under RICO's private right of action, 18 U.S.C. § 1964(c), by demonstrating "that the defendants' alleged misconduct proximately caused [the plaintiffs'] injury." Sosa v. DIRECTV, Inc., 437 F.3d 923, 941 (9th Cir. 2006) (inte ...
Hoffman v. Zenith Ins. Co., 487 F. App’x 365 (9th Cir. 2012): A RICO plaintiff must establish standing to sue under RICO’s private right of action, 18 U.S.C. § 1964(c), by demonstrating “that the defendants’ alleged misconduct proximately caused [the…
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Rule 26(a)(2)(C) Disclosure Must be Provided for Treating Physician — Mere Production of Medical Records Insufficient — Rule 37(c)(1) Factors for Evaluating Substantial Justification and Harmless Error

Carrillo v. B&J Enters., LLC, 2013 U.S. Dist. LEXIS 12435 (D. Nev. Jan. 29, 2013): Plaintiff appears to concede that her expert disclosures do not comply with Rule 26(a)(2)(B). To the extent there is any question, the Court finds that neither the initial expert reports nor supplemental information provided by Plaintiff for proposed expe ...
Carrillo v. B&J Enters., LLC, 2013 U.S. Dist. LEXIS 12435 (D. Nev. Jan. 29, 2013): Plaintiff appears to concede that her expert disclosures do not comply with Rule 26(a)(2)(B). To the extent there is any question, the Court finds that…
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Legal Malpractice Defendant May Implead Other Law Firms for the Client (and for the Parent Company of the Client) While Simultaneously Asserting a Comparative Negligence Defense against the Client

Millennium Import, LLC v. Reed Smith LLP, 2013 N.Y. App. Div. LEXIS 402 (1st Dept. Jan. 24, 2013): This is a legal malpractice action in which defendant law firm brought third-party claims for contribution against three other law firms based on the allegation that they gave erroneous advice to plaintiff, either directly or through plain ...
Millennium Import, LLC v. Reed Smith LLP, 2013 N.Y. App. Div. LEXIS 402 (1st Dept. Jan. 24, 2013): This is a legal malpractice action in which defendant law firm brought third-party claims for contribution against three other law firms based…
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Standards for Exclusion of Untimely Expert Report under Rule 37(c)(1) — Standards for Abuse of Discretion Review — Internally Inconsistent and Unsupported Expert Testimony Excluded

Hunt v. CNH Am. LLC, 2013 U.S. App. LEXIS 2533 (2d Cir. Feb. 6, 2013): A. Exclusion of Holcomb's Supplemental Report Hunt contests the District Court's decision to exclude a supplemental expert report, submitted pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), which was disclosed after the close of expert disco ...
Hunt v. CNH Am. LLC, 2013 U.S. App. LEXIS 2533 (2d Cir. Feb. 6, 2013): A. Exclusion of Holcomb’s Supplemental Report Hunt contests the District Court’s decision to exclude a supplemental expert report, submitted pursuant to Federal Rule of Civil…
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Diversity of Citizenship — Is a National Bank (N.A.) a Citizen Only of the State Designated in Its Charter or Also “Located” Where It Maintains Its Principal Place of Business? Circuit Split

Taber v. NDEX West, LLC, 2012 U.S. Dist. LEXIS 185642 (C.D. Cal. May 9, 2012): On March 15, 2012, Plaintiff Robin Taber ("Plaintiff") filed a Second Amended Complaint against Defendants NDEX West, LLC ("NDEX"), Wells Fargo Bank, N.A. ("Wells Fargo"), Federal National Mortgage Associations, a/k/a Fannie Mae ("Fanny Mae"), and Mortgage E ...
Taber v. NDEX West, LLC, 2012 U.S. Dist. LEXIS 185642 (C.D. Cal. May 9, 2012): On March 15, 2012, Plaintiff Robin Taber (“Plaintiff”) filed a Second Amended Complaint against Defendants NDEX West, LLC (“NDEX”), Wells Fargo Bank, N.A. (“Wells Fargo”),…
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Standards Governing Abuse of Discretion Review and Rule 41(b) Dismissal for Disobeying a Court Order — Ninth Circuit Formulation

VF Elec., Inc. v. GTE Corp., 2013 U.S. App. LEXIS 1437 (9th Cir. Jan. 17, 2013) (unpublished): VF Electric, Inc. appeals from the district court's Order and Opinion dismissing its third amended complaint and action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). We review a district court's "dismissal for failure to co ...
VF Elec., Inc. v. GTE Corp., 2013 U.S. App. LEXIS 1437 (9th Cir. Jan. 17, 2013) (unpublished): VF Electric, Inc. appeals from the district court’s Order and Opinion dismissing its third amended complaint and action with prejudice pursuant to Federal…
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Even If Witness Providing Expert Testimony Has an Interest in the Outcome That Can Be Characterized As Contingent (Here, a Patent Inventor), That Does Not Render the Expert’s Testimony Inadmissible

Mirowski Family Ventures, LLC v. Boston Scientific Corp., 2013 U.S. Dist. LEXIS 15287 (S.D. Ind. Feb. 5, 2013): Boston Scientific next seeks the preclusion of the testimony of Dr. Morton Mower, one of the inventors of the '119 patent technology, on the subject of infringement of the '119 patent.*** ... Boston Scientific argues ...
Mirowski Family Ventures, LLC v. Boston Scientific Corp., 2013 U.S. Dist. LEXIS 15287 (S.D. Ind. Feb. 5, 2013): Boston Scientific next seeks the preclusion of the testimony of Dr. Morton Mower, one of the inventors of the ‘119 patent technology,…
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Attorney-Client Privilege and Work Product Protection: Joint Defense / Common Interest Rule — Second Circuit

Mitsui OSK v. Seamaster, 2013 U.S. Dist. LEXIS 9101 (S.D.N.Y. Jan. 18, 2013): ● “ The common interest doctrine does not provide for a privilege in itself; rather, it is an exception to the rules of waiver that apply when otherwise privileged information is shared with individuals who do not facially share in that privi ...
Mitsui OSK v. Seamaster, 2013 U.S. Dist. LEXIS 9101 (S.D.N.Y. Jan. 18, 2013): ● “ The common interest doctrine does not provide for a privilege in itself; rather, it is an exception to the rules of waiver that apply when…
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Telephone Call to Number Assigned to Business Is Self-Authenticating, But Not to Number Posted on Extinct Website —- Hearsay Excludable on Summary Judgment — Foreign Business Website Not Self-Authenticating under Rule 902(5)

Hansen v. PT Bank Negara Indonesia (Persero), 2013 U.S. App. LEXIS 2523 (10th Cir. Feb. 5, 2013): Plaintiffs-Appellants Theodore L. Hansen, Interstate Energy Corp. and Triple M, L.L.C., appeal from the district court's judgment in favor of Defendant-Appellee PT. Bank Negara Indonesia (Persero) Tbk. ("BNI"). BNI is a banking corporation ...
Hansen v. PT Bank Negara Indonesia (Persero), 2013 U.S. App. LEXIS 2523 (10th Cir. Feb. 5, 2013): Plaintiffs-Appellants Theodore L. Hansen, Interstate Energy Corp. and Triple M, L.L.C., appeal from the district court’s judgment in favor of Defendant-Appellee PT. Bank…
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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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