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

Invited Error Doctrine and Intervening Change of Law

United States v. Maury, 695 F.3d 227 (3d Cir. 2012): Under the invited error doctrine, "[a] defendant cannot complain on appeal of alleged errors invited or induced by himself." Console, 13 F.3d at 660 (citation and internal quotation marks omitted). "[W]here a defendant makes a request in favor of certain instructions, he waiv ...
United States v. Maury, 695 F.3d 227 (3d Cir. 2012): Under the invited error doctrine, “[a] defendant cannot complain on appeal of alleged errors invited or induced by himself.” Console, 13 F.3d at 660 (citation and internal quotation marks omitted).…
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Testifying Expert in Related Case Is Afforded Work Product Protection under 2010 FRCP Amendments — Notes of Experts and Communications with Non-Lawyers Unprotected — Communication Through, or Copying, Agents Does Not Undo Protection

In re Application of Republic of Ecuador ... under 28 U.S.C. § 1782, 2012 U.S. Dist. LEXIS 157497 (N.D. Fla. Nov. 2, 2012): This proceeding is a small part of an expansive, long-running international dispute. The principal adversaries are the Republic of Ecuador ("the Republic"), on one side, and on the other, Chevron Corporation--as ...
In re Application of Republic of Ecuador … under 28 U.S.C. § 1782, 2012 U.S. Dist. LEXIS 157497 (N.D. Fla. Nov. 2, 2012): This proceeding is a small part of an expansive, long-running international dispute. The principal adversaries are the…
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Inherent Power Sanctions: Abuse of Discretion Review Enhanced — Conduct Must Constitute/Be Tantamount to Bad Faith and Be Motivated by Improper Purpose — Unmade Argument Not Waived Where No Chance to Timely Raise It

Wilson v. Citigroup, N.A., 2012 U.S. App. LEXIS 26381 (2d Cir. Dec. 26, 2012): On March 21, 2011, plaintiff Robert E. Wilson III filed a complaint in the district court alleging that various defendants wrongfully denied him participation in the distribution of large profits from an investment strategy and portfolio in Brazilian companie ...
Wilson v. Citigroup, N.A., 2012 U.S. App. LEXIS 26381 (2d Cir. Dec. 26, 2012): On March 21, 2011, plaintiff Robert E. Wilson III filed a complaint in the district court alleging that various defendants wrongfully denied him participation in the…
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Adoption of Arbitral Rules That Grant Arbitrator the Power to Determine Arbitrability Evinces Parties’ Binding Agreement to Forgo Judicial Resolution — So, Too, Does Use of Broad Arbitration Clause

Wynn Resorts, Ltd. v. Atlantic-Pacific Capital, Inc., 2012 U.S. App. LEXIS 23312 (9th Cir. Nov. 13, 2012): 1. Responsibility for Deciding the Arbitrability Issue "The question whether the parties have submitted a particular dispute to arbitration, i.e., the 'question of arbitrability,' is 'an issue for judicial det ...
Wynn Resorts, Ltd. v. Atlantic-Pacific Capital, Inc., 2012 U.S. App. LEXIS 23312 (9th Cir. Nov. 13, 2012): 1. Responsibility for Deciding the Arbitrability Issue “The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of…
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Experts — Rule 26(e)(2) Duty to Supplement Expert Report or Deposition Cannot Be Used to “Sandbag One’s Opponent” and Introduce New Opinions after Court-Ordered Deadline — Rule 37(c)(1) Preclusion Applies — Good Quote

Stuhlmacher v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 164722 (N.D. Ind. Nov. 19, 2012) (note: This LEXIS citation is subject to change when the opinion is annotated and Shepardized by LEXIS): Federal Rule of Civil Procedure 26(a)(2)(D) states that a party must make expert disclosures "at the time and in the sequence that ...
Stuhlmacher v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 164722 (N.D. Ind. Nov. 19, 2012) (note: This LEXIS citation is subject to change when the opinion is annotated and Shepardized by LEXIS): Federal Rule of Civil Procedure 26(a)(2)(D) states…
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Securities — Nature and Extent of § 16(b) Liability — Violation of Statutorily-Imposed Fiduciary Duty to Issuer Defeats Argument That Derivative Plaintiff Lacks Constitutional Standing — Violation of Statutorily-Granted Right = Injury in Fact

Donoghue v. Bulldog Investors G.P., 696 F.3d 170 (2d Cir. 2012): Defendants Bulldog Investors General Partnership and principal Phillip Goldstein (collectively, "Bulldog") appeal from a judgment entered on March 31, 2011, by the United States District Court for the Southern District of New York (Denise L. Cote, Judge), in favor of plain ...
Donoghue v. Bulldog Investors G.P., 696 F.3d 170 (2d Cir. 2012): Defendants Bulldog Investors General Partnership and principal Phillip Goldstein (collectively, “Bulldog”) appeal from a judgment entered on March 31, 2011, by the United States District Court for the Southern…
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Res Judicata / Collateral Estoppel May Form Valid Defenses to Motion to Compel Arbitration

Saucier v. Aviva Life & Annuity Co., 2012 U.S. App. LEXIS 23531 (5th Cir. Nov. 16, 2012): Under the Mississippi Structured Settlement Protection Act ("MSSPA"), no direct or indirect transfer of structured settlement payment rights is effective unless a court finds, among other things, that the transfer is in the best interest of the se ...
Saucier v. Aviva Life & Annuity Co., 2012 U.S. App. LEXIS 23531 (5th Cir. Nov. 16, 2012): Under the Mississippi Structured Settlement Protection Act (“MSSPA”), no direct or indirect transfer of structured settlement payment rights is effective unless a court…
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Pro Se Litigant Subject to Inherent Power Sanctions for Maintaining Identical Legal Position Rejected in Earlier Case without Reasonable Arguments to Justify Reiteration

Palmer v. Comm’r of Internal Revenue, 2012 U.S. App. LEXIS 24293 (10th Cir. Nov. 27, 2012): The Commissioner asks that we impose $8,000 in sanctions on Palmer for maintaining a frivolous appeal. According to the Commissioner, we have already rejected Palmer's arguments as frivolous in his prior proceeding before this court, and furthe ...
Palmer v. Comm’r of Internal Revenue, 2012 U.S. App. LEXIS 24293 (10th Cir. Nov. 27, 2012): The Commissioner asks that we impose $8,000 in sanctions on Palmer for maintaining a frivolous appeal. According to the Commissioner, we have already rejected…
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Sanctions — Pro Se Litigants Must File Separate Motion and Provide 21-Day Safe Harbor — Lawyer as Pro Se Litigant Held to Higher Standard — Post-Dismissal, Court Retains Jurisdiction to Sanction

Metro. Life Ins. Co. v. Kalenevitch, 2012 U.S. App. LEXIS 22262 (3d Cir. Oct. 26, 2012): In 2010, Metropolitan Life Insurance Company ("MetLife") filed a complaint seeking a declaratory judgment that would identify the party entitled to the remaining balance of proceeds (approximately $24,094.13) under an annuity contract. MetLife conte ...
Metro. Life Ins. Co. v. Kalenevitch, 2012 U.S. App. LEXIS 22262 (3d Cir. Oct. 26, 2012): In 2010, Metropolitan Life Insurance Company (“MetLife”) filed a complaint seeking a declaratory judgment that would identify the party entitled to the remaining balance…
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Class Action Fairness Act Jurisdiction — Circuit Split as to How to Determine Whether a State Is a Real Party in Interest in a Parens Patriae Action — Claim-by-Claim vs. Wholesale Approach to Reading Complaint

Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that "a crucial distinction must be made between a plaintiff who sues solely in his capacity as an agent, on the one hand, and, on the other, a plaintiff who sues ...
Myinfoguard v. Sorrell, 2012 U.S. Dist. LEXIS 161070 (D. Vt. Nov. 9, 2012): With respect to both section 1332(a) and CAFA, federal courts are in general agreement that “a crucial distinction must be made between a plaintiff who sues solely…
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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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