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

Ninth Circuit Abandons Rule Requiring That Dismissed Claims Be Realleged in Amended Complaint or Forfeited — Ends Both Sanctions Exposure and Circuit Split

Lacey v. Maricopa Cnty., 2012 U.S. App. LEXIS 18320 (9th Cir. Aug. 29, 2012): Before we consider his claim to immunity, we must address whether the claims against Maricopa County Attorney Andrew Thomas are properly before us, as our circuit law appears to require that we consider the claims against Thomas to be waived. Thomas was na ...
Lacey v. Maricopa Cnty., 2012 U.S. App. LEXIS 18320 (9th Cir. Aug. 29, 2012): Before we consider his claim to immunity, we must address whether the claims against Maricopa County Attorney Andrew Thomas are properly before us, as our circuit…
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“Whether or Not the Supreme Court Is Infallible, It Is Final” and Alone Entitled to Revisit Its Precedents — Good Quote

Woolsey v. Citibank, N.A., 2012 U.S. App. LEXIS 18597 (10th Cir. Sept. 4, 2012): Like so many these days, Stephanie and Kenneth Woolsey owe more money on their home than it's worth. In fact, the value of their home doesn't come close to covering the balance due on their first mortgage, much less the amount they owe on a second. And it's ...
Woolsey v. Citibank, N.A., 2012 U.S. App. LEXIS 18597 (10th Cir. Sept. 4, 2012): Like so many these days, Stephanie and Kenneth Woolsey owe more money on their home than it’s worth. In fact, the value of their home doesn’t…
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Rule 11 — Plaintiffs’ Failure to Consider Obvious Affirmative Defenses before Filing Complaint Is Sanctionable

Petrella v. Metro-Goldwyn-Mayer, Inc., 2012 U.S. App. LEXIS 18322 (9th Cir. Aug. 29, 2012): The defendants contend they are entitled to sanctions under Rule 11 and attorney's fees for Petrella's alleged unjustified filing and prosecution of this action, and ask that we remand for the district court to reconsider its denial of their sanc ...
Petrella v. Metro-Goldwyn-Mayer, Inc., 2012 U.S. App. LEXIS 18322 (9th Cir. Aug. 29, 2012): The defendants contend they are entitled to sanctions under Rule 11 and attorney’s fees for Petrella’s alleged unjustified filing and prosecution of this action, and ask…
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RICO — Filed-Rate Doctrine Does Not Preclude Action against Utility for Paying Unlawful Rebates to Large Customers in Return for Withdrawal of Objections to a Rate-Stabilization Plan for Which State Approval Was Being Sought

Williams v. Duke Energy Int’l, Inc., 681 F.3d 788 (6th Cir. 2012): Plaintiffs appeal the dismissal of their case pursuant to Fed. R. Civ. P. 12(b)(1). The district court, following a hearing, found that the "filed-rate doctrine" denied the court federal question subject-matter jurisdiction. The district court also found that the Publi ...
Williams v. Duke Energy Int’l, Inc., 681 F.3d 788 (6th Cir. 2012): Plaintiffs appeal the dismissal of their case pursuant to Fed. R. Civ. P. 12(b)(1). The district court, following a hearing, found that the “filed-rate doctrine” denied the court…
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Distinguishing an Appealable Modification of an Injunction from a Non-Appealable Clarification — Practical Effects Doctrine — The Legal Relationship of the Parties to the Decree Must Change

United States v. Philip Morris USA Inc., 2012 U.S. App. LEXIS 15528 (D.C. Cir July 27, 2012): Appellant tobacco companies seek review of a district court order clarifying an injunction requiring appellants to disclose marketing data to the government. Appellants claim that the clarification of the injunction actually effects a modificat ...
United States v. Philip Morris USA Inc., 2012 U.S. App. LEXIS 15528 (D.C. Cir July 27, 2012): Appellant tobacco companies seek review of a district court order clarifying an injunction requiring appellants to disclose marketing data to the government. Appellants…
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Standards for Settlement Class Laxer Than for Litigation Class — Trial Management Problems Irrelevant — Securities Fraud Plaintiffs Needn’t Enjoy Fraud on the Market Presumption to Satisfy Predominance

In re AIG Int’l Grp., Inc., Secs. Litig., 2012 U.S. App. LEXIS 16911 (2d Cir. Aug. 13, 2012): In this class action case, we face a rare joint appeal from a district court's order. After the parties arrived at a settlement agreement, the district court ... denied plaintiffs' motion to certify a settlement class. The court held that the ...
In re AIG Int’l Grp., Inc., Secs. Litig., 2012 U.S. App. LEXIS 16911 (2d Cir. Aug. 13, 2012): In this class action case, we face a rare joint appeal from a district court’s order. After the parties arrived at a…
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When International Arbitration Agreement Designates a Non-Existent Forum, New York Convention and Federal Arbitration Act Mandate that District Court Compel Arbitration in Its District

Control Screening LLC v. Technological Application & Prod. Co. (TECAPRO), HCMC-Vietnam, 2012 U.S. App. LEXIS 15418 (3d Cir. July 26, 2012): This dispute involves New Jersey-based Control Screening, LLC and Vietnam-based Technological Application and Production Company, HCMC-Vietnam ("Tecapro"). Control Screening and Tecapro disagree abo ...
Control Screening LLC v. Technological Application & Prod. Co. (TECAPRO), HCMC-Vietnam, 2012 U.S. App. LEXIS 15418 (3d Cir. July 26, 2012): This dispute involves New Jersey-based Control Screening, LLC and Vietnam-based Technological Application and Production Company, HCMC-Vietnam (“Tecapro”). Control Screening…
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Lingering Doubt — and Circuit Split — Concerning Continued Vitality of Sliding Scale Standard for Preliminary Injunctive Relief

Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012): Footnote 8. Several members of the Circuit have read the Supreme Court's decision in Winter to cast doubt on the continued validity of the sliding scale approach. See Davis, 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J., concurring) ("[U]nder the Supr ...
Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012): Footnote 8. Several members of the Circuit have read the Supreme Court’s decision in Winter to cast doubt on the continued validity of the sliding scale approach. See…
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Barebones 26(a)(2)(C) Disclosure Adequate Where Supplemented by Expert’s Testing Results and His 30(b)(6) Deposition

Ira Green, Inc. v. J.L. Darling Corp., 2012 U.S. Dist. LEXIS 113746 (W.D. Wash. Aug. 13, 2012): This matter comes before the court on Plaintiff Ira Green, Inc.'s Motion to Exclude Expert Witness Disclosures and Report and to Preclude Testimony. *** On July 9, 2012, Green deposed Todd Silver, co-owner of Darling, who had been ...
Ira Green, Inc. v. J.L. Darling Corp., 2012 U.S. Dist. LEXIS 113746 (W.D. Wash. Aug. 13, 2012): This matter comes before the court on Plaintiff Ira Green, Inc.’s Motion to Exclude Expert Witness Disclosures and Report and to Preclude Testimony.…
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Relationship between Attorney Ethics Rules and Malpractice Liability — Non-Client Has No Cause of Action under Rule 4.3, Which Creates No Duty toward Non-Clients

Rosenbaum v. White, 2012 U.S. App. LEXIS 17184 (7th Cir. Aug. 16, 2012): [T]he plaintiffs also argue that, even if no attorney-client relationship existed, the defendants still owed them a duty under the Indiana Rules of Professional Conduct. The plaintiffs cite a number of rules that the defendants allegedly violated, most especially R ...
Rosenbaum v. White, 2012 U.S. App. LEXIS 17184 (7th Cir. Aug. 16, 2012): [T]he plaintiffs also argue that, even if no attorney-client relationship existed, the defendants still owed them a duty under the Indiana Rules of Professional Conduct. The plaintiffs…
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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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