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

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 LEXIS 1437 (9th Cir. Jan. 17, 2013) (unpublished): VF Electric, Inc. appeals from the district court's Order and Opinion dismissing its third amended complaint and action with prejudice pursuant to Federal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 LEXIS 1437 (9th Cir. Jan. 17, 2013) (unpublished): VF Electric, Inc. appeals from the district court’s Order and Opinion dismissing its third amended complaint and action with prejudice pursuant to Federal…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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Examined Party (i.e., Plaintiff) Must Show Exceptional Circumstances to Depose Non-Testifying Physician Who Performs Rule 35 Examination (Caselaw Split) — Mere Fact a Testifying Physician References Non-Testifier’s Report Not Enough

Downs v. River City Group, LLC, 2013 U.S. Dist. LEXIS 14018 (D. Nev. Feb. 1, 2013): Rule 35 governs physical and mental examinations in cases where a party's physical or mental condition is at issue. This rule provides that the party who moved for such an examination must provide a copy of the examiner's report which contains the examin ...
Downs v. River City Group, LLC, 2013 U.S. Dist. LEXIS 14018 (D. Nev. Feb. 1, 2013): Rule 35 governs physical and mental examinations in cases where a party’s physical or mental condition is at issue. This rule provides that the…
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Passing Reference to Issue in Appellate Brief Waives It for Failure of Argument — Liberal Construction of Pro Se Pleadings — Disregard of Court Order Justifies Rule 41(b) Dismissal

Levinson v. WEDU-TV, 2013 U.S. App. LEXIS 2242 (11th Cir. Feb. 1, 2013): We review dismissals for failure to comply with a court order, pursuant to Fed. R. Civ. P. 41(b), for abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). If a plaintiff fails to comply with a court order, this Circuit has held that a di ...
Levinson v. WEDU-TV, 2013 U.S. App. LEXIS 2242 (11th Cir. Feb. 1, 2013): We review dismissals for failure to comply with a court order, pursuant to Fed. R. Civ. P. 41(b), for abuse of discretion. Goforth v. Owens, 766 F.2d…
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Spoliation — Dismissal, Adverse Inference, Disclosure to Jury Inapt Where Adulterated Evidence Was Directed to Issues Ruled Substantively Irrelevant — Eleventh Circuit Sanctions Dismissal Standards

SunTrust Mortgage, Inc. v. United Guaranty Residential Ins. Co. of N.C., 2013 U.S. App. LEXIS 2349 (4th Cir. Feb. 1, 2013): SunTrust Mortgage makes mortgage loans on real property. At the heart of this dispute are "IOF Combo 100 Loans," certain second lien loans with an interest-only option. In 1998, SunTrust Mortgage and United ...
SunTrust Mortgage, Inc. v. United Guaranty Residential Ins. Co. of N.C., 2013 U.S. App. LEXIS 2349 (4th Cir. Feb. 1, 2013): SunTrust Mortgage makes mortgage loans on real property. At the heart of this dispute are “IOF Combo 100 Loans,”…
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New York Legal Malpractice Standards — Shifting Burdens on Summary Judgment

Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 2013 N.Y. App. Div. LEXIS 466 (2d Dept. Jan. 30, 2013): "In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that ...
Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 2013 N.Y. App. Div. LEXIS 466 (2d Dept. Jan. 30, 2013): “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary…
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Sanctions —Failure to File Reply Brief as Evidence of Frivolousness — “Close Call” Ruling by District Court as Notice of Frivolousness of Appeal — § 1927 and FRAP 38

Scherer v. JP Morgan Chase & Co., 2012 U.S. App. LEXIS 25516 (6th Cir. Dec. 11, 2012): Under 28 U.S.C. § 1927, we have discretion to impose "costs, expenses, and attorney fees" personally on an attorney "who . . . multiplies the proceedings in any case unreasonably and vexatiously." Waeschle v. Dragovic, 687 F.3d 292, 296 (6th Cir. 201 ...
Scherer v. JP Morgan Chase & Co., 2012 U.S. App. LEXIS 25516 (6th Cir. Dec. 11, 2012): Under 28 U.S.C. § 1927, we have discretion to impose “costs, expenses, and attorney fees” personally on an attorney “who . . .…
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Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

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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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