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 as Business Records — Business Duty Requirement

Beechwood Restorative Care Center v. Leeds, 856 F. Supp. 2d 580 (W.D.N.Y. 2012): H. Emails from Non-parties Defendants object to another forty-three exhibits that are copies of emails from non-parties. Defendants contend that these are not relevant and that they are inadmissible hearsay. Plaintiffs seek to admit ...
Beechwood Restorative Care Center v. Leeds, 856 F. Supp. 2d 580 (W.D.N.Y. 2012): H. Emails from Non-parties Defendants object to another forty-three exhibits that are copies of emails from non-parties. Defendants contend that these are not relevant and that they…
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New Article Discussing Problems in the Federal Civil Rulemaking Process

A new article addressing some issues I see with rulemakers’ relentlessly tweaking the Federal Rules of Civil Procedure and simultaneously not addressing some major problems that need attention can be accessed here: An Instinct for the Capillar ...
A new article addressing some issues I see with rulemakers’ relentlessly tweaking the Federal Rules of Civil Procedure and simultaneously not addressing some major problems that need attention can be accessed here: An Instinct for the Capillary. The article…
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Federal Jurisdiction Extends to Legal Malpractice Claim That Requires Plaintiff to Prove That No Violation of the Federal Securities Laws Occurred in Order to Establish Causation

Reserve Mgmt. Co. v. Willkie Farr & Gallagher LLP, 2012 U.S. Dist. LEXIS 137682 (S.D.N.Y. Sept. 25, 2012): Plaintiff RMCI served as the investment advisor for the Reserve Primary Fund ("the Fund"), a money market fund that, prior to September 2008, held approximately $62.5 billion in assets. (Cmplt. ¶ 2) From July 2002 through Septembe ...
Reserve Mgmt. Co. v. Willkie Farr & Gallagher LLP, 2012 U.S. Dist. LEXIS 137682 (S.D.N.Y. Sept. 25, 2012): Plaintiff RMCI served as the investment advisor for the Reserve Primary Fund (“the Fund”), a money market fund that, prior to September…
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Arbitration — Can Arbitrators Compel Pre-Hearing Document Discovery from Third Parties? Circuit Split

McGreal v. AT&T Corp., 2012 U.S. Dist. LEXIS 140686 (N.D. Ill. Sept. 24, 2012): Footnote 7. The Circuits are split as to whether the FAA authorizes arbitrators to compel pre-hearing document discovery from third parties. The Sixth and Eighth Circuits have held that such power is implicit in the FAA's grant of power to compel d ...
McGreal v. AT&T Corp., 2012 U.S. Dist. LEXIS 140686 (N.D. Ill. Sept. 24, 2012): Footnote 7. The Circuits are split as to whether the FAA authorizes arbitrators to compel pre-hearing document discovery from third parties. The Sixth and Eighth Circuits…
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Spoliation — Negligence Suffices for, But Does Not Require, Adverse Inference in Sixth Circuit — When Sanctions on a Party May Be Apt for Third Party Spoliation = Case-by-Case Determination

Adkins v. Wolever, 2012 U.S. App. LEXIS 18313 (6th Cir. Aug. 29, 2012): This appeal concerns whether Plaintiff-Appellant Kenneth Adkins was entitled to an adverse inference instruction because video and photographic evidence relating to his 42 U.S.C. § 1983 excessive force claim against Defendant-Appellee Basil Wolever was lost by Ioni ...
Adkins v. Wolever, 2012 U.S. App. LEXIS 18313 (6th Cir. Aug. 29, 2012): This appeal concerns whether Plaintiff-Appellant Kenneth Adkins was entitled to an adverse inference instruction because video and photographic evidence relating to his 42 U.S.C. § 1983 excessive…
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Experts — While Conclusory Application of Daubert Is Insufficient to Trigger Deferential Appellate Review, Brief but Informed Application OK — “A Daubert Inquiry Is Not Designed to Have the District Judge Take the Place of the Jury”—Good Quotes

Lapsley v. Xtek, Inc., 689 F.3d 802 (7th Cir. 2012): This appeal arose from an accident at a steel rolling mill that permanently disabled one of the workers there. The circumstances of that accident were unusual. Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That ...
Lapsley v. Xtek, Inc., 689 F.3d 802 (7th Cir. 2012): This appeal arose from an accident at a steel rolling mill that permanently disabled one of the workers there. The circumstances of that accident were unusual. Industrial grease was propelled…
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Rule 12(f) Motion to Strike May Be Directed at Expert Report — Construing Report to be a “Pleading”

Barnes v. District of Columnbia, 2012 U.S. Dist. LEXIS 133764 (D.D.C. Sept. 19, 2012): Under Federal Rule of Civil Procedure 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See F.R.C.P 12(f); Judicial Watch, Inc. v. Dep't of Commerce, 224 F.R.D. 26 ...
Barnes v. District of Columnbia, 2012 U.S. Dist. LEXIS 133764 (D.D.C. Sept. 19, 2012): Under Federal Rule of Civil Procedure 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See F.R.C.P…
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Factors Militating Against Retroactive Application of Judicial Decision

Folks v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 128960 (D. Colo. Sept. 11, 2012): Footnote 3. *** First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, ...
Folks v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 128960 (D. Colo. Sept. 11, 2012): Footnote 3. *** First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past…
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Court Award of Attorneys’ Fees in Class Action Bars Subsequent Malpractice Action — Injunction Upheld under Anti-Injunction Act’s Relitigation Exception — “In Aid of Jurisdiction” Exception Generally Limited to In Rem Actions

Wyly v. Weiss, 2012 U.S. App. LEXIS 21032 (2d Cir. Oct. 10, 2012): In this action under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283, we consider whether, following the approval of a federal class action settlement, the District Court properly enjoined a state court action for legal malpractice di ...
Wyly v. Weiss, 2012 U.S. App. LEXIS 21032 (2d Cir. Oct. 10, 2012): In this action under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283, we consider whether, following the approval of…
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Legal Expert’s “Mere Speculation about a Loss Resulting from an Attorney’s Alleged Omission Is Insufficient to Sustain a Prima Facie Case of Legal Malpractice”

Barbieri v. Fishoff, 98 A.D.3d 703 (2d Dept. 2012): The plaintiff hired the defendant attorney on the eve of trial to represent him in an adversary proceeding in bankruptcy court, in which the plaintiff contended that his signature on a certain real estate document was forged. At the time he hired the defendant, the plaintiff had al ...
Barbieri v. Fishoff, 98 A.D.3d 703 (2d Dept. 2012): The plaintiff hired the defendant attorney on the eve of trial to represent him in an adversary proceeding in bankruptcy court, in which the plaintiff contended that his signature on a…
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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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