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

Non-Expert Historian Testimony — Non-Expert Head of Organization Permitted to Testify as to Centuries-Old History of Organization — Daubert in Bench Trials: Limited But Not Non-Existent Role — Good Quotes

Sovereign Military Hospitaller Order vs. Florida Priory of the nights Hospitallers, 2012 U.S. App. LEXIS 19104 (11th Cir. Sept. 11, 2012): Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitab ...
Sovereign Military Hospitaller Order vs. Florida Priory of the nights Hospitallers, 2012 U.S. App. LEXIS 19104 (11th Cir. Sept. 11, 2012): Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a…
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RICO — Statute of Limitations Accrues When Plaintiff Is on Inquiry Notice of Its Injury — Merck Limited to Securities Cases — Presumption Supreme Court Does Not Overrule Itself Sub Silentio — Elements of Fraudulent Concealment

Koch v. Christie’s Int’l PLC, 2012 U.S. App. LEXIS 20758 (2d Cir. Oct. 4, 2012): For wine, timing is critical. The same is true for causes of action.*** The essence of Koch's allegations against Christie's is that Christie's promoted as authentic a cache of wine that was ostensibly bottled in the late eighteenth century ...
Koch v. Christie’s Int’l PLC, 2012 U.S. App. LEXIS 20758 (2d Cir. Oct. 4, 2012): For wine, timing is critical. The same is true for causes of action.*** The essence of Koch’s allegations against Christie’s is that Christie’s promoted as…
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Should Motion to Dismiss Based on Arbitration Clause Be Filed under Rule 12(b)(6) or 12(b)(3)? Caselaw Split — Answer Determines Materials Court Can Consider on Motion

Washington v. Roosen, Varchetti & Oliver, PPLC, 2012 U.S. Dist. LEXIS 141048 (W.D. Mich. Sept. 17, 2012): This matter comes before the Court on two motions to dismiss. (ECF Nos. 5 and 6.) Defendant Web Equity ("Web Equity") filed the first motion to dismiss, along with a supporting brief. (ECF No. 5.) Defendant Roosen, Varchetti & Olive ...
Washington v. Roosen, Varchetti & Oliver, PPLC, 2012 U.S. Dist. LEXIS 141048 (W.D. Mich. Sept. 17, 2012): This matter comes before the Court on two motions to dismiss. (ECF Nos. 5 and 6.) Defendant Web Equity (“Web Equity”) filed the…
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Coverage Action Involving Lloyd’s May Form CAFA Class Action — Prior Judicial Reticence Overridden by CAFA — Defect in Subject Matter Jurisdiction, when Cured, Relates Back to Beginning of Action — All Prior Rulings Restored to Vitality

Certain Underwriters at Lloyd's of London v. Ill. Nat’l Ins. Co., 2012 U.S. Dist. LEXIS 141798 (S.D.N.Y. Sept. 24, 2012) (Preska, Ch. J.): Certain Underwriters at Lloyd's of London ("Underwriters"), Aspen Insurance UK Ltd. ("Aspen"), and Arch Insurance Company (Europe) Ltd. ("Arch-Europe") (collectively, "Plaintiffs") commenced this d ...
Certain Underwriters at Lloyd’s of London v. Ill. Nat’l Ins. Co., 2012 U.S. Dist. LEXIS 141798 (S.D.N.Y. Sept. 24, 2012) (Preska, Ch. J.): Certain Underwriters at Lloyd’s of London (“Underwriters”), Aspen Insurance UK Ltd. (“Aspen”), and Arch Insurance Company (Europe)…
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Summary Judgment — Failure to Document Conclusory Denial of Statement of Uncontested Fact = Admission — Causation in Legal Malpractice Action, and the Role of Expert Testimony

Joseph DelGreco & Co. v. DLA Piper LLP, 2012 U.S. Dist. LEXIS 142017 (S.D.N.Y. Oct. 1, 2012) (Engelmayer, J.): Defendant DLA Piper LLP ("DLA"), a law firm, moves for summary judgment against the Complaint of plaintiffs Joseph DelGreco and DelGreco & Co. (collectively, "DelGreco" or "plaintiffs"), which alleges that DLA committed various ...
Joseph DelGreco & Co. v. DLA Piper LLP, 2012 U.S. Dist. LEXIS 142017 (S.D.N.Y. Oct. 1, 2012) (Engelmayer, J.): Defendant DLA Piper LLP (“DLA”), a law firm, moves for summary judgment against the Complaint of plaintiffs Joseph DelGreco and DelGreco…
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Sanctions for Procedural Misconduct in the Course of a Federal Action Is Governed by Federal Sanctions Law — Failure to Abide by Safe Harbor Precludes Rule 11 Sanctions

Oliva v. Nat’l City Mortgage Co., 2012 U.S. App. LEXIS 16129 (9th Cir. Aug 3, 2012): The district court did not abuse its discretion by declining to award defendants attorney's fees. Defendants were not entitled to attorney's fees under Nev. Rev. Stat. §§ 7.085 and 18.010 because plaintiffs' alleged misconduct was procedural in n ...
Oliva v. Nat’l City Mortgage Co., 2012 U.S. App. LEXIS 16129 (9th Cir. Aug 3, 2012): The district court did not abuse its discretion by declining to award defendants attorney’s fees. Defendants were not entitled to attorney’s fees under Nev.…
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Rule 11 and Tax Protestors (or Others Filing Suit in the Face of Unambiguous Law) — “Plaintiffs May Disagree with the State of the Law, But Rule 11 Prohibits Them from Filing Fictional Claims to Protest It”

United States v. Vallone, 2012 U.S. App. LEXIS 20308 (7th Cir. Sept. 28, 2012): At the conclusion of an eleven week trial, a jury convicted defendants *** of conspiring to defraud the United States by impeding and impairing the functions of the Internal Revenue Service ("IRS") and to commit offenses against the United States, along wit ...
United States v. Vallone, 2012 U.S. App. LEXIS 20308 (7th Cir. Sept. 28, 2012): At the conclusion of an eleven week trial, a jury convicted defendants *** of conspiring to defraud the United States by impeding and impairing the functions…
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Damages Opinion Based on “Nascent Company’s” Business Plan Excluded Where Expert Didn’t Know Who Prepared Plan or Its Assumptions — That Plan Was Admitted at Trial Does Not Preclude Exclusion of Opinion under Rule 702, Even If Rule 703 Satisfiied

ZF Meritor, LLC v. Eaton Corp., 2012 U.S. App. LEXIS 20342 (3d Cir. Sept. 28, 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's damages analysis was one page (titled "Five Year Pr ...
ZF Meritor, LLC v. Eaton Corp., 2012 U.S. App. LEXIS 20342 (3d Cir. Sept. 28, 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus’s testimony on the issue of damages.…
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Spoliation — Adverse Inference Requires Bad Faith But Not Malice in Eleventh Circuit — Negligence, Even Recklessness, Is Insufficient

Silver v. Countrywide Home Loans, Inc., 2012 U.S. App. LEXIS 11620 (11th Cir. June 8, 2012): Silver contends that the district court abused its discretion by not imposing sanctions and by not finding an inference of spoliation against Countrywide for failing to turn over emails relevant to the case and for failing to have a proper liti ...
Silver v. Countrywide Home Loans, Inc., 2012 U.S. App. LEXIS 11620 (11th Cir. June 8, 2012): Silver contends that the district court abused its discretion by not imposing sanctions and by not finding an inference of spoliation against Countrywide for…
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Unsolicited Email Sent After Purchase ≠ Notice of Duty to Arbitrate — Shrinkwrap vs. Browsewrap vs. Clickwrap Contracts — Summary Judgment Standard on Motion to Compel Arbitration; Choice of Law Clause Inapt on That Motion — Good Quotes

Schnabel v. Trileagiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. Sept. 7, 2012): The question presented to us on this appeal is whether the plaintiffs are bound to arbitrate their dispute with the defendants as a consequence of an arbitration provision that the defendants assert was part of a contract between the parties. Neither of t ...
Schnabel v. Trileagiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. Sept. 7, 2012): The question presented to us on this appeal is whether the plaintiffs are bound to arbitrate their dispute with the defendants as a consequence of an…
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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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