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

Social Media — Jurors Complaints About Jury Service on Facebook, Receipt of Commiserating Messages, and Friending Other Jurors Not Grounds for New Trial Absent Evidence of Extraneous Influence — No Right to Discovery from Facebook

Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012): After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, § 30(1), her defense counsel visited Facebook, a social networking Web site, and reviewed public postings by two jurors mad ...
Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012): After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, §…
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Rule 11 Safe Harbor Satisfied by Service of Naked Motion — Unnecessary to Serve Accompanying Brief and Affidavit — Judge’s Warning that Proposed Motion May Trigger Sanctions Proper

Star Mark Mgmt., Inc. v. Koon Chun Hing K&E Soy & Sauce Factory, Ltd., 2012 U.S. App. LEXIS 12002 (2d Cir. June 13, 2012): The safe-harbor provision is a strict procedural requirement. Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 142 n.4 (2d Cir. 2002); see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-29 (2d Cir. 1995). An ...
Star Mark Mgmt., Inc. v. Koon Chun Hing K&E Soy & Sauce Factory, Ltd., 2012 U.S. App. LEXIS 12002 (2d Cir. June 13, 2012): The safe-harbor provision is a strict procedural requirement. Perpetual Sec., Inc. v. Tang, 290 F.3d 132,…
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Federal District Court Should Look to Decisions of Other Circuits in the Absence of Guiding Authority in Its Own Circuit and Be Reluctant to Create a Circuit Split

United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an "informed person" would expect this court "to look to the opinions of other circuits for persuasive guidance, always chary to create a circuit split." ...
United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an “informed person” would expect this court “to look…
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Arbitration — If Manifest Disregard Survives, What Does It Mean?

Cerone v. Bank of Am. Inv. Servs., 2012 U.S. Dist. LEXIS 76952 (D.N.J. June 4, 2012): Pursuant to the FAA, a district court may vacate an arbitration award only under a limited set of circumstances: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or co ...
Cerone v. Bank of Am. Inv. Servs., 2012 U.S. Dist. LEXIS 76952 (D.N.J. June 4, 2012): Pursuant to the FAA, a district court may vacate an arbitration award only under a limited set of circumstances: (1) where the award was…
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Insufficiently Detailed 26(a)(2)(C) Expert Disclosures

Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant ... argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that the plaintiff provided under Rule 26(a)(2)(C) is insufficient. Specifically, the def ...
Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant … argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that…
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Inherent Power Sanction in Interest of “Fairness” Unsustainable Absent Finding of Bad Faith

Tucker v. Williams, 2012 U.S. App. LEXIS 11262 (7th Cir. June 5, 2012): After investigating a report that Kendall Tucker was in possession of a stolen backhoe, Karl Williams, a state law enforcement investigator, seized the backhoe without a warrant. Tucker brought a civil rights action in district court, claiming that his rights under ...
Tucker v. Williams, 2012 U.S. App. LEXIS 11262 (7th Cir. June 5, 2012): After investigating a report that Kendall Tucker was in possession of a stolen backhoe, Karl Williams, a state law enforcement investigator, seized the backhoe without a warrant.…
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Should Evidentiary Rulings Be Reviewed De Novo or for Abuse of Discretion? Various Circuit Splits, Focusing on, But Not Limited to, Rule 404(b) Rulings

United States v. Clay, 2012 U.S. App. LEXIS 7873 (6th Cir. April 19, 2012) (Kethledge, J., dissenting): This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue — on which there is also an inter-circuit split — concerns our standard of review with respect to ...
United States v. Clay, 2012 U.S. App. LEXIS 7873 (6th Cir. April 19, 2012) (Kethledge, J., dissenting): This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue — on which there…
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Red Flags Militating Against Introduction of Expert Evidence

Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012): Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2 ...
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012): Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v.…
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Earliest Case Rule: When Faced with Intra-Circuit Split, Court Should Look to the Line of Authority Containing Earliest Decision Because Later Panel Cannot Overturn Earlier Panel

Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. "When faced with an intra-circuit split we must apply the 'earliest case' rule, meaning 'when circuit authority is in conflict, a panel shoul ...
Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. “When faced with an intra-circuit split we must apply…
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Circuit Split as to Whether Government or Plaintiff Bears Burden of Proving Applicability/Inapplicability of Discretionary Function Exception in Federal Tort Claims Act Case

Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a "carefully limited waiver" of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011)(citing Bolduc v. United States, 402 F ...
Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a “carefully limited waiver” of the federal government’s sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll…
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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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