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

Inherent Power Sanction of Counsel for Bad Faith Defense of Motion Not Immediately Appealable — Rule 11 Reprimand Threatening Reputational Damage Distinguished — Rule 54(b) Jurisdiction Unachieved by Mere Recital of Standard

Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012): Square brought the underlying suit in the United States District Court for the Eastern District of Missouri against REM Holdings 3, LLC (REM), seeking a correction of inventorship with regard to U.S. Patent No. 7,810,729 (the '729 Patent).
Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012): Square brought the underlying suit in the United States District Court for the Eastern District of Missouri against REM Holdings 3, LLC (REM),…
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RICO — Neither Attorneys’ Fees Nor Cost of Surgeries Nor Injury to Intangible Interest in Personal Medical Information Constitute Concrete or Quantifiable Injury to Business or Property within § 1964(d) — Declaratory Relief Discretionary

Dickerson v. TLC The Laser Eye Center Institute, Inc., 2012 U.S. App. LEXIS 17395 (4th Cir. Aug. 15, 2012); Charles Benjamin Dickerson appeals the district court's grant of motions to dismiss the first amended complaint ("FAC") filed by Appellees TLC Lasik Centers, TLC Clinical Directors, TLC LASIK Surgeons, and TLC Management (collecti ...
Dickerson v. TLC The Laser Eye Center Institute, Inc., 2012 U.S. App. LEXIS 17395 (4th Cir. Aug. 15, 2012); Charles Benjamin Dickerson appeals the district court’s grant of motions to dismiss the first amended complaint (“FAC”) filed by Appellees TLC…
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While Motion to Compel Arbitration Should Reference §3 or §4 of the FAA, Absence Does Not Preclude Appellate Jurisdiction under § 16 — Party Does Not Default on Right to Arbitrate by Delay and Participation, Alone — Actual Prejudice Essential

Wheeling Hosp., Inc. v. The Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577 (4th Cir. 2012): Appellees Wheeling Hospital and Belmont Hospital***, along with other medical providers, commenced this putative class action in West Virginia state court on May 19, 2010, against the Ohio Valley Health Services and Education Corporation ...
Wheeling Hosp., Inc. v. The Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577 (4th Cir. 2012): Appellees Wheeling Hospital and Belmont Hospital***, along with other medical providers, commenced this putative class action in West Virginia state court…
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Appealability — Failure to Appeal Sanction in Name of Counsel Does Not Deprive Circuit of Jurisdiction Where Body of Notice Recites That Sanction Imposed on Counsel Is Appealed

Guckenberger v. Prudential Ins. Co. of Am., 2012 U.S. App. LEXIS 13881 (2d Cir. July 9, 2012): [W]e conclude that we have jurisdiction over the claim on appeal that the district court improperly sanctioned Guckenberger's counsel pursuant to Federal Rule of Civil Procedure Rule 11. "Where an award of sanctions runs only against the attor ...
Guckenberger v. Prudential Ins. Co. of Am., 2012 U.S. App. LEXIS 13881 (2d Cir. July 9, 2012): [W]e conclude that we have jurisdiction over the claim on appeal that the district court improperly sanctioned Guckenberger’s counsel pursuant to Federal Rule…
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Documents Beyond Complaint That May Be Considered on 12(b)(6) Motion to Dismiss and for What Purpose — Utility of Affidavit or Declaration

Biro v. Condé Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012): When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. "Documents that are attached to the complaint or incorporated in it by reference are deemed part of t ...
Biro v. Condé Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012): When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. “Documents…
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RICO — § 1962(d) Requires Conspiracy to Violate RICO, Not Merely Conspiracy to Commit Predicate Acts

Zavala v. Wal-Mart Stores, Inc., 2012 U.S. App. LEXIS 16610 (3d Cir. Aug. 9, 2012): This suit was brought in the U.S. District Court for the District of New Jersey by Wal-Mart cleaning crew members who are seeking compensation for unpaid overtime and certification of a collective action under the Fair Labor Standards Act (FLSA), civil d ...
Zavala v. Wal-Mart Stores, Inc., 2012 U.S. App. LEXIS 16610 (3d Cir. Aug. 9, 2012): This suit was brought in the U.S. District Court for the District of New Jersey by Wal-Mart cleaning crew members who are seeking compensation for…
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Minimal 26(a)(2)(C) Disclosure Upheld Because Complaint Sufficiently Elucidated Likely Scope of Testimony

Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 (N.D. Iowa Aug. 14, 2012): Footnote 8. The defendants ... maintain that I erred when I permitted Elizabeth Pratt to offer expert opinion testimony on whether Gilster would experience anxiety and stress in the future because Gilster failed to disclose Pratt's expert opinion on this s ...
Gilster v. Primebank, 2012 U.S. Dist. LEXIS 114447 (N.D. Iowa Aug. 14, 2012): Footnote 8. The defendants … maintain that I erred when I permitted Elizabeth Pratt to offer expert opinion testimony on whether Gilster would experience anxiety and stress…
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Securities — Circuit Split as to Whether PSLRA’s Heightened Pleading Standards Apply to Loss Causation Allegations — Rebound in Stock Price after Disclosure of Fraud Does Not Defeat Inference of Economic Loss

Acticon AG v. China NE Petroleum Holdings Ltd., 2012 WL 3104589 (2d Cir. Aug. 1, 2012): This case requires us to consider whether the fact that a stock’s share price recovered soon after the fraud became known defeats an inference of economic loss in a securities fraud suit. Plaintiff–Appellant Acticon AG (“Acticon”) is t ...
Acticon AG v. China NE Petroleum Holdings Ltd., 2012 WL 3104589 (2d Cir. Aug. 1, 2012): This case requires us to consider whether the fact that a stock’s share price recovered soon after the fraud became known defeats an inference…
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Sanctions Based on Misinterpretation of Substantive Law — Where Claims “Quickly and Correctly” Dismissed, They Did Not Vexatiously Multiply the Proceedings within § 1927 — Recklessness Suffices for § 1927 Sanctions in Ninth Circuit

Braunstein v. Ariz. Dep’t of Transportation, 2012 U.S. App. LEXIS 13150 (9th Cir. June 27, 2012): Under § 1927, an attorney who unreasonably and vexatiously "multiplies the proceedings" in a case may be required to pay the excess fees and costs caused by such conduct. Unlike an award of attorneys' fees under § 1988, an award of sanc ...
Braunstein v. Ariz. Dep’t of Transportation, 2012 U.S. App. LEXIS 13150 (9th Cir. June 27, 2012): Under § 1927, an attorney who unreasonably and vexatiously “multiplies the proceedings” in a case may be required to pay the excess fees and…
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“Motion” to Voluntarily Dismiss under Rule 41(a)(1) May = Notice of Dismissal Despite Title — Court Retains Jurisdiction to Sanction, Cite for Criminal Contempt and Possibly Grant 60(b) Relief

Edwards-Brown v. Crete-Monee 201 U School Dist., 2012 U.S. App. LEXIS 16358 (7th Cir. Aug. 7, 2012): We note first that the district court properly construed Brown's "motion" for voluntary dismissal as a notice of voluntary dismissal under Rule 41(a)(1). That she incorrectly called it a "motion to dismiss" is irrelevant. See S ...
Edwards-Brown v. Crete-Monee 201 U School Dist., 2012 U.S. App. LEXIS 16358 (7th Cir. Aug. 7, 2012): We note first that the district court properly construed Brown’s “motion” for voluntary dismissal as a notice of voluntary dismissal under Rule 41(a)(1).…
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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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