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

“Tight Causal Relationship” Required to State Claim for Legal Malpractice Liability in New York

Farrell Family Ventures, LLC v. Sekas, 863 F. Supp. 2d 324 (S.D.N.Y. 2012): LEGAL MALPRACTICE CAUSE OF ACTION In order to state a claim for legal malpractice, a party must allege that (1) the attorney was negligent; (2) such negligence was a proximate cause of plaintiff's losses; and (3) actual damage. E.g., Flutie Bros ...
Farrell Family Ventures, LLC v. Sekas, 863 F. Supp. 2d 324 (S.D.N.Y. 2012): LEGAL MALPRACTICE CAUSE OF ACTION In order to state a claim for legal malpractice, a party must allege that (1) the attorney was negligent; (2) such negligence…
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Re-Asserting Position Previously Rejected by the Courts, and Failing to Cite to Judicial Rejections (Including Those Handed Down during Pendency of Appeal), Sanctionable under § 1927

Parker v. CitiMortgage, Inc., 2012 U.S. App. LEXIS 21585 (10th Cir. Oct. 17, 2012): The only remaining issue is CitiMortgage's motion for sanctions against the trustee's lawyer. Title 28 of U.S.C. § 1927 provides in pertinent part that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may ...
Parker v. CitiMortgage, Inc., 2012 U.S. App. LEXIS 21585 (10th Cir. Oct. 17, 2012): The only remaining issue is CitiMortgage’s motion for sanctions against the trustee’s lawyer. Title 28 of U.S.C. § 1927 provides in pertinent part that “[a]ny attorney…
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SLUSA Does Not Permit Removal of a Federal Securities Class Action Originally Filed in State Court Stating Claims under the 1933 Act — Caselaw Split Partially Immune from Appellate Review — CAFA Split Also Noted — Good Quote: Statutory Construction

Niitsoo v. Alpha Natural Resources, Inc., 2012 U.S. Dist. LEXIS 158049 (S.D. W. Va. Nov. 5, 2012): Pending before the court is the plaintiff's Motion to Remand Case to the Circuit Court of Boone County [Docket 13]. The disposition of this motion depends on whether the Securities Act of 1933 ("Securities Act"), as amended by the Securiti ...
Niitsoo v. Alpha Natural Resources, Inc., 2012 U.S. Dist. LEXIS 158049 (S.D. W. Va. Nov. 5, 2012): Pending before the court is the plaintiff’s Motion to Remand Case to the Circuit Court of Boone County [Docket 13]. The disposition of…
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Spoliation Found for Destruction of Records That Statute and Rules Required be Preserved in Circumstances Where Litigation or at Least Controversy Was Foreseeable (Residential Funding Standard) — No Sanctions Because Minimal Relevance

Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., 2012 U.S. App. LEXIS 21793 (6th Cir. Oct. 18, 2012): I. Spoilation of Evidence Before addressing the merits, we turn first to Plaintiffs' claim that the district court erred in refusing to impose sanctions against Defendants for spoilation of evidence. Plaintiffs ...
Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., 2012 U.S. App. LEXIS 21793 (6th Cir. Oct. 18, 2012): I. Spoilation of Evidence Before addressing the merits, we turn first to Plaintiffs’ claim that the district court erred in refusing…
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Must RICO Damages Be Clear and Definite? — Circuit Split — State Work Comp Statute Cannot Bar Federal RICO Remedy for Fraudulent Denial of Benefits — Rooker-Feldman Inapplicable

Jackson v. Segwick [Sedgwick] Claims Mgmt. Servs., 2012 U.S. App. LEXIS 22557 (6th Cir. Nov. 2, 2012) (note: highly divided 3-judge panel): I. BACKGROUND Clifton Jackson was employed by Coca-Cola when he allegedly injured his lumbosacral spine at work in September 2007. R. 2 (Am. Compl. ¶31A) (Page ID #39). Ja ...
Jackson v. Segwick [Sedgwick] Claims Mgmt. Servs., 2012 U.S. App. LEXIS 22557 (6th Cir. Nov. 2, 2012) (note: highly divided 3-judge panel): I. BACKGROUND Clifton Jackson was employed by Coca-Cola when he allegedly injured his lumbosacral spine at work in…
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Equitable Estoppel as Basis for Compelling Arbitration against Non-Signatory — Claim Must Arise out of an Obligation Created by Contract Containing the Arbitration Clause

Weingarten Realty Investors v. Miller, 2012 U.S. App. LEXIS 21984 (5th Cir. Oct. 22, 2012): ***WRI and Miller Sheriden, LLC ("Miller Sheriden"), an LLC organized by Miller, created a joint venture, Weingarten Miller Sheriden ("WMS"), and WRI loaned that joint venture $75,000,000 under a Loan Agreement between WRI and WMS. The Loan Ag ...
Weingarten Realty Investors v. Miller, 2012 U.S. App. LEXIS 21984 (5th Cir. Oct. 22, 2012): ***WRI and Miller Sheriden, LLC (“Miller Sheriden”), an LLC organized by Miller, created a joint venture, Weingarten Miller Sheriden (“WMS”), and WRI loaned that joint…
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First-Filed Rule — Required Degree of Overlap between Actions —- Is Complete Identity of Parties Required? (Circuit Split) — Exceptions: “Improper Anticipatory Actions” and “Balance of Convenience and Interest of Justice”

Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg ... commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. ... and MetLife, Inc. ... seeking to recover both unpaid overtime and minimum wa ...
Wyler-Wittenberg v. MetLife Home Loans, Inc., 2012 U.S. Dist. LEXIS 150865 (E.D.N.Y. Oct. 17, 2012): The Plaintiff Patricia Wyler-Wittenberg … commenced this putative collective and class action against MetLife Home Loans, a Division of MetLife Bank, N.A. … and MetLife,…
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Rule 37(c)(1) — Factors for Determining Whether a Failure to Disclose or Make Discovery Is Harmless

Battle vs. O'Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): "Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory ... unless non-disclosure was justified or harmless." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (internal quotations marks omitted). The Seventh Circuit has ...
Battle vs. O’Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012): “Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory … unless non-disclosure was justified or harmless.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir.…
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No Sanctions Imposed for Plaintiff’s Filing and Prosecuting Suit in Face of Potentially Meritorious Affirmative Defense of Res Judicata

C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney's fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains that sanctions and attorney's fees were appropriate in this case because C.H. Robinson i ...
C.H. Robinson Worldwide, Inc. v. Lobrano, 2012 U.S. App. LEXIS 20592 (8th Cir. Oct. 3, 2012): Lobrano unsuccessfully moved for sanctions and attorney’s fees under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. On appeal, Lobrano maintains…
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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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