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

Emails Offered on State of Mind ≠ Hearsay — in Employment Discrimination Case, Complaints Emailed by Employee’s Supervisor to Her Superior Admissible to Show Recipient’s Belief, in Discharging Employee, That Employee Had Acted Badly

Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson's former supervisors, Carol Redman. Ms. Dickerson argues that these email messages are cited by Holsten for the truth of Ms. Redman's statements making them inadmiss ...
Dickerson v. Holsten Mgmt. Corp., 2012 U.S. Dist. LEXIS 139425 (N.D. Ill. Sept. 27, 2012): Ms. Dickerson first takes issue with three emails written by one of Ms. Dickerson’s former supervisors, Carol Redman. Ms. Dickerson argues that these email messages…
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Arbitration / Sanctions — Claim Party Was Fraudulently Induced to Enter Contract, as Opposed to Just Arbitration Clause, Is for Arbitrator to Decide — Even If Rule 11 Violated, Sanctions Are Discretionary

Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. ("Leadsinger"), a company that sold, inter alia, karaoke systems. Between October 2005 and September 2008, Leadsinger and Costco entered ...
Ipcon Collections LLC v. Costco Wholesale Corp., 2012 U.S. App. LEXIS 20944 (2d Cir. Oct. 9, 2012): This appeal arises out of a contract dispute between Costco and ES Electrosales Leadsinger, Co., Ltd. (“Leadsinger”), a company that sold, inter alia,…
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Arbitration — Elements for Proving Fraud in Procuring Award — Error of Expert Witness Insufficient — Error of Fact or Law by Arbitrators ≠ Reversible Act of Exceeding Their Powers

Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, "Appellants") alleged that Defendant-Appellee Morgan Keegan & Company, Inc. ("Morgan Keegan") engaged in a fraudulent scheme that induced Appellants to invest substantially in four highly risky mutual funds t ...
Morgan Keegan & Co. v. Garrett, 2012 U.S. App. LEXIS 22057 (5th Cir. Oct. 23, 2012): A group of eighteen investors (collectively, “Appellants”) alleged that Defendant-Appellee Morgan Keegan & Company, Inc. (“Morgan Keegan”) engaged in a fraudulent scheme that induced…
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Class Actions — Circuit Split as to Whether Standing Should Be Addressed Prior to Class Certification

Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 133634 (N.D. Okla. Sept. 19, 2012): The Tenth Circuit has indicated that courts should generally address standing prior to class certification. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011) ("Prior to class certification, the named plaintiffs' failure t ...
Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 133634 (N.D. Okla. Sept. 19, 2012): The Tenth Circuit has indicated that courts should generally address standing prior to class certification. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159…
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Courts of Appeal Are Loath to Create a Circuit Split — Policy Reasons behind Avoidance

Two Cases: 1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012): [T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) ("[T]he Tenth Circuit's decision . . . is th ...
Two Cases: 1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012): [T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d…
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No First Amendment Defense to Sanctions — Here, Inherent Power Sanctions

In re Gleason, 2012 U.S. App. LEXIS 21248 (11th Cir. Oct. 15, 2012): Gleason contends his sixty-day suspension from practice violates his First Amendment right to free speech. He argues that the bankruptcy court should not have disciplined him based on the "tone" of his submissions, which he describes as "truthful responses to a strin ...
In re Gleason, 2012 U.S. App. LEXIS 21248 (11th Cir. Oct. 15, 2012): Gleason contends his sixty-day suspension from practice violates his First Amendment right to free speech. He argues that the bankruptcy court should not have disciplined him based…
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Securities — Tipper and Tippee Scienter under Classical and Misappropriation Theories of Insider Trading — Scienter Requirement As Applied to Tippee Chains

Securities and Exchange Commission v. Obus, 693 F.3d 276 (2d Cir. 2012): A. The [Classical vs. the] Misappropriation Theory of Insider Trading Insider trading--unlawful trading in securities based on material non-public information--is well established as a violation of section 10(b) of the Securities Exchange Act of 19 ...
Securities and Exchange Commission v. Obus, 693 F.3d 276 (2d Cir. 2012): A. The [Classical vs. the] Misappropriation Theory of Insider Trading Insider trading–unlawful trading in securities based on material non-public information–is well established as a violation of section 10(b)…
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Legal Malpractice and Choice of Law — A State Has a Paramount Interest in Regulating Lawyers Practicing within Its Borders — Elements of Judicial Estoppel (Majority Rule) and Law of the Case Doctrine — Law Governing Claim Governs Affirmative Defenses

Cobalt Multifamily Investors I, LLC v. Shapiro, 857 F. Supp. 2d 419 (S.D.N.Y. 2012): B. Choice of Law Issues The Receiver argues that the claims against the Law Firm Defendants are controlled by the laws of their respective domiciles, such that New York law governs the Certilman Defendants, Connecticut law go ...
Cobalt Multifamily Investors I, LLC v. Shapiro, 857 F. Supp. 2d 419 (S.D.N.Y. 2012): B. Choice of Law Issues The Receiver argues that the claims against the Law Firm Defendants are controlled by the laws of their respective domiciles, such…
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Prudential vs. Constitutional Standing — Circuit Split as to Whether Prudential Standing Can Be Waived — Prudential Standing Principles

G&S Holdings LLC v. Continental Cas. Co., 2012 U.S. App. LEXIS 19728 (7th Cir. Sept. 20, 2012): There are both constitutional and prudential limitations on the jurisdiction of the federal courts. Warth v. Seldin, 422 U.S. 490, 498 (1975). Under Article III of the Constitution, the jurisdiction of the courts is limited to claim ...
G&S Holdings LLC v. Continental Cas. Co., 2012 U.S. App. LEXIS 19728 (7th Cir. Sept. 20, 2012): There are both constitutional and prudential limitations on the jurisdiction of the federal courts. Warth v. Seldin, 422 U.S. 490, 498 (1975). Under…
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No Spoliation Inference Where Evidence “has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for”

Felix v. GMS, Zallie Holdings, Inc., 2012 U.S. App. LEXIS 21075 (3d Cir. Oct. 11, 2012): B. Spoliation Felix also argues that the District Court erred in denying her re-quest for a spoliation inference based on GMS's failure to provide security camera footage showing her fall. GMS had security cameras operating through ...
Felix v. GMS, Zallie Holdings, Inc., 2012 U.S. App. LEXIS 21075 (3d Cir. Oct. 11, 2012): B. Spoliation Felix also argues that the District Court erred in denying her re-quest for a spoliation inference based on GMS’s failure to provide…
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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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