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

Sanctions — Lead Counsel Responsible for Discovery Failures, Cannot Shift Blame — Rule 37 Motion Puts Counsel on Notice of Personal Risk — No Defense That He Didn’t Instruct Client Not to Comply — No Right to Oral Argument in Second Circuit

Rates Technology, Inc. v. Mediatrix Telecom, Inc., 2012 U.S. App. LEXIS 15489 (Fed. Cir. July 26, 2012): This appeal arises from the imposition of discovery sanctions against James B. Hicks. Mr. Hicks was the lead attorney for Rates Technology, Inc. ("RTI"), the plaintiff in a patent infringement action. The two patents in suit relate ...
Rates Technology, Inc. v. Mediatrix Telecom, Inc., 2012 U.S. App. LEXIS 15489 (Fed. Cir. July 26, 2012): This appeal arises from the imposition of discovery sanctions against James B. Hicks. Mr. Hicks was the lead attorney for Rates Technology, Inc.…
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Motions in Limine — Standards

Mahaney v. Novartis Pharm. Corp., 835 F. Supp. 2d 299 (W.D. Ky. 2011): Motions in limine provided in advance of trial are appropriate if they eliminate evidence that has no legitimate use at trial for any purpose. Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Bouchard v. Am. Home Products Corp., 213 F. S ...
Mahaney v. Novartis Pharm. Corp., 835 F. Supp. 2d 299 (W.D. Ky. 2011): Motions in limine provided in advance of trial are appropriate if they eliminate evidence that has no legitimate use at trial for any purpose. Jonasson v. Lutheran…
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28 U.S.C. § 1782 Contains No Requirement That the Evidence Sought Be Admissible in the Foreign Proceeding — Good Quote on Abuse of Discretion Standard

Brandi-Dohrn v. IKB Deutsche Insustriebank AG, 673 F.3d 76 (2d Cir. 2012): Petitioner-Appellant Anselm Brandi-Dohrn appeals from an Order dated November 16, 2011 *** granting Respondent-Appellee IKB Deutsche Industriebank AG's motion to quash subpoenas issued pursuant to 28 U.S.C. § 1782. Under section 1782, a district court is permitt ...
Brandi-Dohrn v. IKB Deutsche Insustriebank AG, 673 F.3d 76 (2d Cir. 2012): Petitioner-Appellant Anselm Brandi-Dohrn appeals from an Order dated November 16, 2011 *** granting Respondent-Appellee IKB Deutsche Industriebank AG’s motion to quash subpoenas issued pursuant to 28 U.S.C. §…
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Circuit Split as to Whether Bankruptcy Court or District Court Has Jurisdiction over Claims Arising out of Violation of the Automatic Stay

Roberts v. Am. Bank & Trust Co., 835 F. Supp. 2d 183 (E.D. La. 2011): The American Bank Defendants have moved to dismiss Plaintiff's claims of violation of the automatic stay, arguing that this Court lacks jurisdiction to hear the claim and that Plaintiff fails to state a claim upon which relief can be granted. The United States ...
Roberts v. Am. Bank & Trust Co., 835 F. Supp. 2d 183 (E.D. La. 2011): The American Bank Defendants have moved to dismiss Plaintiff’s claims of violation of the automatic stay, arguing that this Court lacks jurisdiction to hear the…
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Failure to Assert Affirmative Defense — Waiver or Constructive Amendment of Answer by Raising Defense in Motion for Summary Judgment? — Factors — Good Quote

Sky Harbor Air Serv. v. Reams, 2012 U.S. App. LEXIS 14899 (10th Cir. July 20, 2012): The illegality of a contract is a defense that "a party must affirmatively state" in a pleading. See Fed. R. Civ. P. 8(c)(1); see also Int'l Bhd. of Elec. Workers, Local Union Nos. 12, 111, 113, 969 v. Prof'l Hole Drilling, Inc., 574 F.2d 497, 500 (10th ...
Sky Harbor Air Serv. v. Reams, 2012 U.S. App. LEXIS 14899 (10th Cir. July 20, 2012): The illegality of a contract is a defense that “a party must affirmatively state” in a pleading. See Fed. R. Civ. P. 8(c)(1); see…
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Court May Reduce § 1927 Sanction Based on Violator’s Inability to Pay — Circuit Split

Haynes v. City & Cnty. of San Francisco, 2012 U.S. App. LEXIS 15102 (9th Cir. July 23, 2012): Gregory Haynes ("Haynes") was the counsel for the plaintiff in the underlying action. The district court determined that Haynes continued pursuit of plaintiff's claims, after it was clear that the claims were frivolous and in bad faith. The cou ...
Haynes v. City & Cnty. of San Francisco, 2012 U.S. App. LEXIS 15102 (9th Cir. July 23, 2012): Gregory Haynes (“Haynes”) was the counsel for the plaintiff in the underlying action. The district court determined that Haynes continued pursuit of…
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§ 1927 Sanctions Are Discretionary Even If Vexatiousness Found — Bad Faith Finding Subject to Clear-Error Standard of Review

Olson v. Reynolds, 2012 U.S. App. LEXIS 13167 (7th Cir. June 27, 2012): We turn next to the denial of sanctions under section 1927. Under this provision, a court may in its discretion impose sanctions only upon a finding of bad faith-meaning extreme negligence, "serious and studied disregard for the orderly process of justice," pursuit ...
Olson v. Reynolds, 2012 U.S. App. LEXIS 13167 (7th Cir. June 27, 2012): We turn next to the denial of sanctions under section 1927. Under this provision, a court may in its discretion impose sanctions only upon a finding of…
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Post-Deposition Changes to Deposition Transcript — Circuit Split as to Whether Material Substantive Alterations Are Permissible under Rule 30(e)

Patel v. Patel (In re Patel), 2012 Bankr. LEXIS 3277 (Bankr. D. N.M. July 13, 2012): Plaintiffs ask the court to strike the changes that Dipak Patel and Padma Patel have made to their deposition transcripts. Pursuant to Rule 30(e), a deponent is permitted to make "changes in form or substance" to a deposition transcript by signing a ...
Patel v. Patel (In re Patel), 2012 Bankr. LEXIS 3277 (Bankr. D. N.M. July 13, 2012): Plaintiffs ask the court to strike the changes that Dipak Patel and Padma Patel have made to their deposition transcripts. Pursuant to Rule 30(e),…
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Treating Physicians = Unretained Experts Requirng Rule 26(a)(2)(C) Disclosures, Not 26(a)(2)(B) Reports — Even If They Form Opinions as to Causation After Treatment Rather Than During Treatment

O'Leary v. Kaupas, 2012 U.S. Dist. LEXIS 95769 (S.D.N.Y. July 11,2012): Defendant Paul Kaupas ("Kaupas") moves this Court to bar the testimony of three of Plaintiff Marlis O'Leary's ("O'Leary") expert witnesses because the witnesses failed to submit written reports under Federal Rule of Civil Procedure 26(a)(2)(B). The three expert witn ...
O’Leary v. Kaupas, 2012 U.S. Dist. LEXIS 95769 (S.D.N.Y. July 11,2012): Defendant Paul Kaupas (“Kaupas”) moves this Court to bar the testimony of three of Plaintiff Marlis O’Leary’s (“O’Leary”) expert witnesses because the witnesses failed to submit written reports under…
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RICO — “Bankers Do Not Become Racketeers by Acting Like Bankers” (Good Quote)

Jones v. Liberty Bank and Trust Co., 461 Fed. Appx. 407 (5th Cir. 2012): Racketeering activity is defined by reference to particular state and federal criminal offenses. See 18 U.S.C. § 1961(1). Jones's factual allegations, taken as true, indicate that (1) he was repeatedly deprived of access to federal and state financial assistance p ...
Jones v. Liberty Bank and Trust Co., 461 Fed. Appx. 407 (5th Cir. 2012): Racketeering activity is defined by reference to particular state and federal criminal offenses. See 18 U.S.C. § 1961(1). Jones’s factual allegations, taken as true, indicate that…
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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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