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

Sixth Circuit Spoliation Standards for Adverse Inference Instruction

Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] "party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed wi ...
Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] “party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an…
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RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO's "Venue and Process" section, § 1965(a), "does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant is found." PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F. ...
Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO’s “Venue and Process” section, § 1965(a), “does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant…
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Fact that RICO Claim Would Not Exist But for Plaintiff’s Entry into Contract Is Insufficient to Permit Non-Signatories to Assert Equitable Estoppel to Enforce Forum Selection Clause — Court Will Apply Law All Parties Assume Is Applicable

Bahamas Sales Assoc., LLC v. Ginn Fin’l Servs., LLC, 2012 U.S. App. LEXIS 24887 (11th Cir. Dec. 4, 2012): In late 2006, Donald Cameron Byers purchased a lot in the Bahamas. His purchase contract contains a provision that requires all disputes to be litigated in the Bahamas under Bahamian law. Byers financed the purchase with a mor ...
Bahamas Sales Assoc., LLC v. Ginn Fin’l Servs., LLC, 2012 U.S. App. LEXIS 24887 (11th Cir. Dec. 4, 2012): In late 2006, Donald Cameron Byers purchased a lot in the Bahamas. His purchase contract contains a provision that requires all…
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When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Paradigm Biodevices, Inc. -v- Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312 (S.D.N.Y. Jan. 17, 2013): By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to produce a draft report prepared by Zolfo Cooper (the "Report"), an entity appointed by an English court as liquidator of Surgicraft, and other communi ...
Paradigm Biodevices, Inc. -v- Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312 (S.D.N.Y. Jan. 17, 2013): By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to produce a draft report prepared by Zolfo Cooper (the “Report”), an…
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Even If Rule 11 Violated, Court Has Discretion to Deny Sanctions — § 1927 Requires “Conduct Constituting or Akin to Bad Faith” — Once Claim Is Adjudicated, Res Judicata Bars More Litigation under Different Theory or Seeking New Remedy

WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music's complaint for substantially the same reasons stated by the district court. In sum, WD Music's second state-court action was brought to a final conclusion by the New York State Supreme Court's dismissal on res judica ...
WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music’s complaint for substantially the same reasons stated by the district court. In sum, WD Music’s second state-court…
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RICO: Freeze-Out Merger Does Not Constitute Fraud in the Sale of Securities within PSLRA Bar — Shareholder Cannot Show Proximate Cause If Injury Is Derivative of Harm to Corporation

Amos v. Franklin Fin’l Servs. Corp., 2011 WL 5903875 (M.D. Pa. November 22, 2011), aff’d, 2013 U.S. App. LEXIS 868 (3d Cir. Jan. 11, 2013) (the following is from the Court of Appeals’ affirmance): Matthew P. Amos and twenty four other plaintiffs have appealed the district court's order dismissing their first amended complaint for ...
Amos v. Franklin Fin’l Servs. Corp., 2011 WL 5903875 (M.D. Pa. November 22, 2011), aff’d, 2013 U.S. App. LEXIS 868 (3d Cir. Jan. 11, 2013) (the following is from the Court of Appeals’ affirmance): Matthew P. Amos and twenty four…
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Sanctions — Distinctive Rationales and Intertwined Applicability of Rule 11 and 35 U.S.C. § 285 in Patent Cases

Raylon, LLC. v. Complus Data Innovations, Inc., 700 F.3d 1361 (Fed. Cir. 2012) (Reyna, J., concurring): II. Distinct Rule 11 and § 285 Inquiries Rule 11 of the Federal Rules of Civil Procedure and 35 U.S.C. § 285 of the Patent Act offer courts distinct, yet overlapping, rationales for awarding an injured party relief. ...
Raylon, LLC. v. Complus Data Innovations, Inc., 700 F.3d 1361 (Fed. Cir. 2012) (Reyna, J., concurring): II. Distinct Rule 11 and § 285 Inquiries Rule 11 of the Federal Rules of Civil Procedure and 35 U.S.C. § 285 of the…
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“Purely Factual Material” in Work Product Document Not Subject to Production — Waiver of Privilege vs. Waiver of Work Product — Fed.R.Evid. 502 “Abolished the Dreaded Subject Matter Waiver”

Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. ("API") and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin, the government hired a consultant that prepared reports on the companies' responsibility fo ...
Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. (“API”) and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin,…
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Inherent Power Sanctions: Bad Faith Required in 5th Circuit — Raising Patently Frivolous Legal Argument and Threatening Further Meritless Litigation = Bad Faith — Pro Se Litigant — Vexatious Litigant Injunction Must Be Tailored

Terra Partners v. Rabo Agrifinance, Inc., 2012 U.S. App. LEXIS 26291 (5th Cir. Dec. 21, 2012): On September 20, 2012, Steve Veigel sought to file a pro se amicus brief in support of Terra Partners. Steve Veigel has an obvious interest in this case. He is an authorized managing agent for Terra Partners, is a corporate officer for all fo ...
Terra Partners v. Rabo Agrifinance, Inc., 2012 U.S. App. LEXIS 26291 (5th Cir. Dec. 21, 2012): On September 20, 2012, Steve Veigel sought to file a pro se amicus brief in support of Terra Partners. Steve Veigel has an obvious…
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Spoliation Claim Mooted by Court’s Assuming Truth of Party’s Factual Position

Lawler v. Montblanc N. Am., LLC, 2013 U.S. App. LEXIS 761 (9th Cir. Jan. 11, 2013): Finally, Lawler argues that the district court abused its discretion by declining to draw a negative inference of discrimination against Defendants because they "willfully" destroyed the August 5, 2009 security tape capturing the exchange between Schmitz ...
Lawler v. Montblanc N. Am., LLC, 2013 U.S. App. LEXIS 761 (9th Cir. Jan. 11, 2013): Finally, Lawler argues that the district court abused its discretion by declining to draw a negative inference of discrimination against Defendants because they “willfully”…
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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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