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

Spoliation — Adverse Inference at Bench Trial Does Not Preclude Verdict for Spoliator — Inference Is Permissive, Not Mandatory

Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012): Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to preserve a surveillance videotape that may have recorded the incident. The district court fo ...
Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012): Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to…
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Eighth Circuit Reserves on Question Whether Spoliation Sanctions Are Ever Appropriate in a Criminal Case

United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court's refusal to give a spoliation instruction based upon the DEA's destruction of the videotape violated his constitutional due process rights. Davis's arguments on this point are admittedly reiterative of his suppression argument ...
United States v. Davis, 2012 U.S. App. LEXIS 17735 (8th Cir. Aug. 22, 2012): Davis contends the district court’s refusal to give a spoliation instruction based upon the DEA’s destruction of the videotape violated his constitutional due process rights. Davis’s…
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Official Government Website Evidence Is Admissible in New York State

Vandenberg Inc. v. Townhouse 84, LLC, 2012 N.Y. Misc. LEXIS 4420, 2012 NY Slip Op 32351U (Sup. Ct. N.Y. Cnty. Sept. 7, 2012): Of this evidence that Townhouse 84, LLC, is an LLC separate from 45 West 84th Street, LLC, at least the latter documents, from an official government web site, are admissible. LaSonde v. Seabrook, 89 A ...
Vandenberg Inc. v. Townhouse 84, LLC, 2012 N.Y. Misc. LEXIS 4420, 2012 NY Slip Op 32351U (Sup. Ct. N.Y. Cnty. Sept. 7, 2012): Of this evidence that Townhouse 84, LLC, is an LLC separate from 45 West 84th Street, LLC,…
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Sanctions — Circuit Splits: (1) No Vicarious Liability under § 1927 — (2) No Bad Faith Required for § 1927 Sanctions

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court's Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on Catlett [plaintiff’s counsel] and would not apply to Gibson [plaintiff] ...
Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): 28 U.S.C. § 1927 and the Court’s Inherent Power *** Footnote 3. Notably, in this case, sanctions under § 1927 could be imposed only on…
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Expert Reports — Distinguishing 26(a)(2)(B) Retained Experts from 26(a)(2)(C) Hybrid Witnesses — What “Facts” and “Opinions” Must Be Disclosed under 26(a)(2)(C)

Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose "the identity of any witness [they] may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26. Rule 26(a)(2)(B) further re ...
Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose “the identity of any witness [they] may use at trial to present evidence under Federal…
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Limited Scope of Fraud and Mistake as Grounds to Overturn Arbitration Award

Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. "The statute does not provide for vacatur in the event of any fraudulent conduct, but only 'where the award was procured by corruption, fraud, or un ...
Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. “The statute does not provide for vacatur in the event…
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Designating as a Witness a Hybrid Non-Reporting Expert Who Has Percipient Knowledge of Facts Waives All Privilege and Work Product Protection for Communications between That Witness and Counsel

PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012): PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to testify, many of which involved GTN's in-house and outside counsel. GTN objects that these ...
PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012): PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to…
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Unquantified Sanctions Award Is Not Appealable Unless It is Inextricably Intertwined with an Appealable Order or Review of It Is Necessary to Review the Appealable Order

Orenshteyn v. Citrix Sys., Inc., 2012 U.S. App. LEXIS 15507 (Fed. Cir. July 26, 2012): By statute, this court has jurisdiction over an appeal of a decision of a district court if it is "final" under 28 U.S.C. § 1295(a)(1) or if it is an interlocutory order as specified in 28 U.S.C. § 1292. The district court's decision on the merits * ...
Orenshteyn v. Citrix Sys., Inc., 2012 U.S. App. LEXIS 15507 (Fed. Cir. July 26, 2012): By statute, this court has jurisdiction over an appeal of a decision of a district court if it is “final” under 28 U.S.C. § 1295(a)(1)…
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Initial Taking of Property = RICO Injury — No Separate Accrual for Continuing Profit Earned by Defendant over Time — Failure to File Federal RICO Action for Six Years after State Court Claims Dismissed Precludes Equitable Tolling

Kecia v. Bach & Wasserman, LLC, 2012 U.S. App. LEXIS 18136 (5th Cir. Aug. 27, 2012): In May 2002, the Josephs received a settlement from a personal injury matter. They invested the money in different ventures, including several retail food trailers. They purchased two new food units for their business from Customs Sales ("Customs"), pay ...
Kecia v. Bach & Wasserman, LLC, 2012 U.S. App. LEXIS 18136 (5th Cir. Aug. 27, 2012): In May 2002, the Josephs received a settlement from a personal injury matter. They invested the money in different ventures, including several retail food…
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§ 1927 Sanctions May Not Be Ordered Paid to the Court — Inherent Power Sanctions May Be Imposed Even If Rule 11 Procedural Requirements Violated — Post-Judgment Inherent Power Sanctions

Melliott v. MSN Commc’ns, Inc., 2012 U.S. App. LEXIS 15218 (10th Cir. July 24, 2012): John R. Olsen, who was the plaintiff's attorney in the underlying district-court action, and his law firm appeal a Fed. R. Civ. P. 11 sanction imposed on them. Although we sympathize with the district court's frustration with Mr. Olsen's conduct, the ...
Melliott v. MSN Commc’ns, Inc., 2012 U.S. App. LEXIS 15218 (10th Cir. July 24, 2012): John R. Olsen, who was the plaintiff’s attorney in the underlying district-court action, and his law firm appeal a Fed. R. Civ. P. 11 sanction…
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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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