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

Pecuniary Losses Stemming from Personal Injury Do Not Constitute Injury to Business or Property Cognizable under RICO — Amendment Futile

Keller v. Strauss, 2012 U.S. App. LEXIS 13867 (11th Cir. July 9, 2012): Gerald Keller appeals pro se from the district court's dismissal with prejudice of his federal claims and dismissal without prejudice of his state-law claims, which Keller brought in a civil action seeking damages for: (1) medical negligence; (2) breach of contract; ...
Keller v. Strauss, 2012 U.S. App. LEXIS 13867 (11th Cir. July 9, 2012): Gerald Keller appeals pro se from the district court’s dismissal with prejudice of his federal claims and dismissal without prejudice of his state-law claims, which Keller brought…
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Factual Material Provided to and Considered by Expert Is Discoverable Despite 2010 Expert Witness Amendments — Even If Material Includes Work Product

Fialkowski v. Perry, 2012 U.S. Dist. LEXIS 91165 (E.D. Pa. June 29, 2012): The present discovery dispute arises from defendants' request that plaintiff produce materials that plaintiff's expert witness, certified public accountant Howard Lapensohn, identified in paragraph 17 of the "Document Review" portion of the written report he prep ...
Fialkowski v. Perry, 2012 U.S. Dist. LEXIS 91165 (E.D. Pa. June 29, 2012): The present discovery dispute arises from defendants’ request that plaintiff produce materials that plaintiff’s expert witness, certified public accountant Howard Lapensohn, identified in paragraph 17 of the…
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Sanctions — Sixth Circuit Issues Directive Requiring Appellants and Their Counsel to Address Adverse Precedent and Advise the Court If They Are Arguing for a Change in the Law, or Face Sanctions

Waeschle v. Dragovic, 2012 U.S. App. LEXIS 14501 (6th Cir. July 16, 2012): B. Sanctions Following Waeschle's appeal to this Court, Defendants filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912 and 1927, arguing that the appeal is frivolous. Section 1912 provides that, where ...
Waeschle v. Dragovic, 2012 U.S. App. LEXIS 14501 (6th Cir. July 16, 2012): B. Sanctions Following Waeschle’s appeal to this Court, Defendants filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912 and…
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Scope of Subject Matter Waiver of Privilege, If Any, Resulting from Intentional Prelitigation Disclosure of Privileged Memo Is Governed by the Same Fairness Considerations as in Rule 502(a) — Undecided Whether 502(a) Applies Prelitigation

Wi-Lan, Inc. v. Kilpatrick Townsend & Stockton LLP, 2012 U.S. App. LEXIS 14432 (Fed. Cir. July 13, 2012): The law firm of Kilpatrick Townsend & Stockton LLP ("Kilpatrick Townsend") appeals contempt sanctions entered in connection with a subpoena served on it in the Northern District of California. Wi-LAN, Inc. v. LG Elecs., Inc ...
Wi-Lan, Inc. v. Kilpatrick Townsend & Stockton LLP, 2012 U.S. App. LEXIS 14432 (Fed. Cir. July 13, 2012): The law firm of Kilpatrick Townsend & Stockton LLP (“Kilpatrick Townsend”) appeals contempt sanctions entered in connection with a subpoena served on…
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Spoliation — Second Circuit Limits Pension Committee — Holds That Failure to Issue Litigation Hold Despite Notice of a Claim Does Not Per Se Constitute Gross Negligence — Totality of Circumstances Test

Chin v. Port Auth. of NY & NJ, 2012 WL 2760776 (2d Cir. July 10, 2012): Plaintiffs-appellees, eleven Asian Americans currently or formerly employed as police officers by the Port Authority of New York and New Jersey (“Port Authority”), sued the Port Authority under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ...
Chin v. Port Auth. of NY & NJ, 2012 WL 2760776 (2d Cir. July 10, 2012): Plaintiffs-appellees, eleven Asian Americans currently or formerly employed as police officers by the Port Authority of New York and New Jersey (“Port Authority”), sued…
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History of Prevailing Party Attorneys’ Fees (US vs. UK) in a Few Sentences — Good Quotes: (1) District Court Doesn’t Address All Factors; (2) Sanctions: Absence of Dismissal Motion Undercuts Claim Case Was Frivolous from Outset

Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): It is true that some jurisdictions routinely award fees to the prevailing party. Footnote 1. In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967), the Supreme Court discussed one such example:
Gibson v. Solideal USA, Inc., 2012 U.S. App. LEXIS 14415 (6th Cir. July 10, 2012): It is true that some jurisdictions routinely award fees to the prevailing party. Footnote 1. In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.…
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§ 1927 Sanctions Properly Denied Because Defense Counsel’s Time Records Did Not Permit Him to Identify Time Specifically Spent Defending 10 Meritless Claims That Were Dismissed on the Eve of Trial

Jackson v. Diversified Collection Servs., Inc., 2012 U.S. App. LEXIS 12392 (10th Cir. June 19, 2012): DCS sought fees against Mr. Jackson's attorney, claiming that he acted in bad faith dismissing numerous claims at the start of trial. The district court ruled that a sanction under § 1927 for multiplication of proceedings was warranted ...
Jackson v. Diversified Collection Servs., Inc., 2012 U.S. App. LEXIS 12392 (10th Cir. June 19, 2012): DCS sought fees against Mr. Jackson’s attorney, claiming that he acted in bad faith dismissing numerous claims at the start of trial. The district…
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Spoliation — Destruction of Disposable Breath Test Device That Does Not Retain Results Is Not Sanctionable — Manufacturer’s Statement That It “Is Not Intended To Legally Determine Blood Alcohol” Goes to Weight — Good Quote on Daubert

Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court's evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line ("NCL"). Rutledge was aboard NCL's Norwegian Sun cruise ship on March 3, 2007, when she was injured in a fall as she ...
Rutledge v. NCL (Bahamas), Ltd., 464 Fed. Appx. 826 (11th Cir. Mar. 20, 2012): Ada Mae Rutledge appeals several of the district court’s evidentiary rulings in her negligence-based jury trial against Norwegian Cruise Line (“NCL”). Rutledge was aboard NCL’s Norwegian…
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Internet Evidence Not Offered for the Truth Sufficiently Authenticated on Summary Judgment by Attorney’s Affidavit

Lebewohl v. Heart Attack Grill, LLC, 2012 U.S. Dist. LEXIS 93945 (S.D.N.Y. July 6, 2012): The parties to this declaratory judgment action are restaurants that use provocative names to market their extravagantly caloric food. Defendants are a chain of theme restaurants called the Heart Attack Grill and its owners (together, "HAG"). HAG's ...
Lebewohl v. Heart Attack Grill, LLC, 2012 U.S. Dist. LEXIS 93945 (S.D.N.Y. July 6, 2012): The parties to this declaratory judgment action are restaurants that use provocative names to market their extravagantly caloric food. Defendants are a chain of theme…
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Discovery under 28 U.S.C. § 1782 — Ex Parte / OSC Approach Satisfies Due Process — Deferential Appellate Review: “Not Outside the Range of Permissible Decisions”

Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak ("Gushlak") and Yelena Furman ("Furman") appeal from orders of the district court granting Debbie Gushlak's petition for an order of judicial assistance, under 28 U.S.C. § 1782, to obtain discovery in connection with a foreign lega ...
Gushlak v. Gushlak, 2012 U.S. App. LEXIS 13535 (2d Cir. July 3, 2012): Respondent-appellees Myron Gushlak (“Gushlak”) and Yelena Furman (“Furman”) appeal from orders of the district court granting Debbie Gushlak’s petition for an order of judicial assistance, under 28…
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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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