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

May a Party Raise a New Legal Argument before the District Judge in Objecting to a Report and Recommendation of a Magistrate Judge? — Three-Way Circuit Split — Second Circuit Standard for Considering New Arguments on Motion for Reconsideration

Amadasu v. Ngati, 2012 U.S. Dist. LEXIS 129283 (E.D.N.Y. Sept. 9, 2012): Whether a party may raise a new legal argument, or present an entire previously unasserted cross-motion or opposition, for the first time in objections to an R&R has not yet been decided in this Circuit. See Wells Fargo Bank N.A. v. Sinnot, 2010 WL 297 ...
Amadasu v. Ngati, 2012 U.S. Dist. LEXIS 129283 (E.D.N.Y. Sept. 9, 2012): Whether a party may raise a new legal argument, or present an entire previously unasserted cross-motion or opposition, for the first time in objections to an R&R has…
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On Remand After Appeal, District Court Must Implement “Both the Letter and the Spirit of the Mandate” — Good Quotes

EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (3d Cir. Sept. 14, 2012): "It is axiomatic that on remand for further proceedings after [a] decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 94 ...
EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (3d Cir. Sept. 14, 2012): “It is axiomatic that on remand for further proceedings after [a] decision by an appellate court, the trial court must proceed in accordance with the mandate…
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Arbitration — Current State of the Circuit Split Concerning the Viability of Manifest Disregard as Ground for Vacatur

Bangor Gas Company, LLC v. H.Q. Energy Servs., 2012 U.S. App. LEXIS 20218 (1st Cir. Sept. 26, 2012): [T]his court in the past recognized a common law ground for vacating arbitration awards that are in "manifest disregard of the law," McCarthy v. Citigroup Global Mkts. Inc., 463 F.3d 87, 91 (1st Cir. 2006) (quoting Wonderland Greyhound P ...
Bangor Gas Company, LLC v. H.Q. Energy Servs., 2012 U.S. App. LEXIS 20218 (1st Cir. Sept. 26, 2012): [T]his court in the past recognized a common law ground for vacating arbitration awards that are in “manifest disregard of the law,”…
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Statutory Construction: “There Is Currently a Circuit Split over Whether the Existence of a Circuit Split Is Evidence of Statutory Ambiguity”

Cuellar de Osorio v. Napolitano, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (M. Smith, J., dissenting): Footnote 1. I do not state or imply that a circuit split is evidence that a statute is ambiguous, although the Supreme Court has stated that "contrasting positions of the respective parties and their amici" may demonst ...
Cuellar de Osorio v. Napolitano, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (M. Smith, J., dissenting): Footnote 1. I do not state or imply that a circuit split is evidence that a statute is ambiguous, although the…
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Sanctions — No Appellate Jurisdiction to Reverse Erroneous Award Where Notice of Appeal Filed Only after Opinion Granting Sanctions (Nonfinal) But Not after Fees Quantified and Awarded (Final) — FRAP 4(a)(2), 4(a)(4)(B)(i) Do Not Save Appeal

Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman's contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice as required under Rule 11(c)(1). Notice plays a central part in the Rule 11 process, as ...
Feldman v. Olin Corp., 2012 U.S. App. LEXIS 18106 (7th Cior. Aug. 27, 2012): We are sympathetic to Feldman’s contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice…
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Circuit Split as to Whether Daubert Applies at Class Certification — Supreme Court Has Granted Cert in Case Implicating This Issue and May Resolve It This Term

In re Rail Freight Fuel Surcharge Antitrust Litig., 2012 U.S. Dist. LEXIS 134241 (D.D.C. Sept. 20, 2012): Defendants correctly identify a circuit split as to whether a district court must address Daubert challenges at the class certification stage. Compare Am. Honda Co. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010) ("[T]he distri ...
In re Rail Freight Fuel Surcharge Antitrust Litig., 2012 U.S. Dist. LEXIS 134241 (D.D.C. Sept. 20, 2012): Defendants correctly identify a circuit split as to whether a district court must address Daubert challenges at the class certification stage. Compare Am.…
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RICO — No PSLRA Bar to Tax Shelter Suit against Law Firm for Opinion Letters — Securities Only Incidental to the Fraud — 4 Letters over 5 Years (3 of Them within 2 Months) Satisfy Continuity

Ouwinga v. Benistar 419 Plan Services, Inc., 2012 U.S. App. LEXIS 19632 (6th Cir. Sept. 19, 2012): Plaintiff-Appellants Stephen, Leann, David, and Christine Ouwinga and their company, Stoney Creek Fisheries and Equipment, Inc., (the "Ouwingas") appeal the dismissal of their Complaint against various Defendant-Appellees related to a pur ...
Ouwinga v. Benistar 419 Plan Services, Inc., 2012 U.S. App. LEXIS 19632 (6th Cir. Sept. 19, 2012): Plaintiff-Appellants Stephen, Leann, David, and Christine Ouwinga and their company, Stoney Creek Fisheries and Equipment, Inc., (the “Ouwingas”) appeal the dismissal of their…
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Daubert Safeguards “Not as Essential” in Bench Trial — Expert Testimony Based on Industry Experience That Does Not Rest on Scientific Principles Does Not Require Scientific Substantiation

Lightfoot v. MXEnergy Elec., Inc., 690 F.3d 352 (5th Cir. 2012): Under Federal Rules of Evidence 702 and 703, the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony. The Supreme Court has provided factors to inform the reliability determination, but the inquiry is a "flexible" one, and trial c ...
Lightfoot v. MXEnergy Elec., Inc., 690 F.3d 352 (5th Cir. 2012): Under Federal Rules of Evidence 702 and 703, the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony. The Supreme Court has provided…
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Authentication of Website Evidence by Testimony of Downloading Witness That Printout Accurately Reflects Page at Time Printout Was Made

Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): "Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made" before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evid ...
Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012): “Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at…
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Contours of Commercial Activity Exception of the Foreign Sovereign Immunities Act

Terenkian v. Republic of Iraq, 2012 U.S. App. LEXIS 19557 (9th Cir. Sept. 18, 2012): Pentonville Developers, Ltd., and Marblearch Trading, Ltd., two Cyprus oil brokerage companies, sued the Republic of Iraq for unilaterally terminating two contracts for the purchase and sale of Iraqi oil. The district court held it had subject matter ju ...
Terenkian v. Republic of Iraq, 2012 U.S. App. LEXIS 19557 (9th Cir. Sept. 18, 2012): Pentonville Developers, Ltd., and Marblearch Trading, Ltd., two Cyprus oil brokerage companies, sued the Republic of Iraq for unilaterally terminating two contracts for the purchase…
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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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