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

Compulsory Counterclaims under Rule 13 — Competing Plain-Meaning and Real-Party-in-Interest Tests — What Is an “Opposing” Party?

Thayer v. Owens, 2012 U.S. Dist. LEXIS 72915 (C.D. Utah May 24, 2012): Prior to July 2009, Homer Owens ("Homer") and Emerald Owens ("Defendant") lived together as husband and wife at their residence in California. Although the facts are incomplete, it appears that Homer has suffered from a form of mental illness or incapacity for some t ...
Thayer v. Owens, 2012 U.S. Dist. LEXIS 72915 (C.D. Utah May 24, 2012): Prior to July 2009, Homer Owens (“Homer”) and Emerald Owens (“Defendant”) lived together as husband and wife at their residence in California. Although the facts are incomplete,…
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Rule 407 Applies in Contract Action — Bars Evidence of Post-Claim Change in Contract Language — OK to Grant New Trial Due to Error in Excluding Evidence under Rule 403 — Good Quote on Dangers of Limiting Cross

Reynolds v. Univ. of Pennsylvania, 2012 U.S. App. LEXIS 10641 (3d Cir. May 25, 2012): Reynolds applied to and enrolled in the Executive Masters in Technology Management ("EMTM") program at the University of Pennsylvania in 2002 and claims that at that time he was told that the EMTM students would be considered graduates and alumni of Wh ...
Reynolds v. Univ. of Pennsylvania, 2012 U.S. App. LEXIS 10641 (3d Cir. May 25, 2012): Reynolds applied to and enrolled in the Executive Masters in Technology Management (“EMTM”) program at the University of Pennsylvania in 2002 and claims that at…
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Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 71445 (E.D.N.Y. May 22, 2012): Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. ("PBA"), to enforce this Court's December 15, 2011 Confidentiality Order ("Confidentiality O ...
Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 71445 (E.D.N.Y. May 22, 2012): Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York,…
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Collateral Estoppel — Default Judgment Entered as a Sanction for Refusal to Comply with Discovery Order Has Preclusive Effect

Sartin v. Macik, 535 F.3d 284 (4th Cir. 2008): [E]very federal circuit court to consider the question has held that a default judgment entered as a sanction for refusal to comply with discovery orders has preclusive effect. See In re Ansari, 113 F.3d 17, 19 (4th Cir. 1997) (applying Virginia law); In re Docteroff, 133 F.3d 210, 215 (3d C ...
Sartin v. Macik, 535 F.3d 284 (4th Cir. 2008): [E]very federal circuit court to consider the question has held that a default judgment entered as a sanction for refusal to comply with discovery orders has preclusive effect. See In re…
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Class Actions — Impact of 2003 Amendment to Rule 23 Allowing Parties to Settle or Dismiss without Judicial Approval: Court Must Grant Stipulated Motion to Dismiss (Here, without Prejudice)

Sample v. Qwest Commc’ns Co., LLC, 2012 U.S. Dist. LEXIS 70927 (D. Ariz. May 22, 2012): On May 26, 2011, the parties to this action submitted a Joint Motion for Certification of Settlement Class, Preliminary Approval of Class-Action Settlement, and Approval of Form and Notice (Doc. 57). The proposed settlement sought to resolve trespa ...
Sample v. Qwest Commc’ns Co., LLC, 2012 U.S. Dist. LEXIS 70927 (D. Ariz. May 22, 2012): On May 26, 2011, the parties to this action submitted a Joint Motion for Certification of Settlement Class, Preliminary Approval of Class-Action Settlement, and…
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Does Rule 9(b) Apply to Claims of Negligent Misrepresentation? Circuit Split

From W&W Steel, LLC v. BSC Steel, Inc., 2012 U.S. Dist. LEXIS 69432 (D. Kan. May 18, 2012): Footnote 14. See D&K Ventures, LLC v. MGC, LLC, No. 09-2084, 2009 WL 1505539, at *8 (D. Kan. May 27, 2009) (recognizing a circuit split with regard to whether Rule 9(b) applies to negligent misrepresentation claims and noting the Tenth Circui ...
From W&W Steel, LLC v. BSC Steel, Inc., 2012 U.S. Dist. LEXIS 69432 (D. Kan. May 18, 2012): Footnote 14. See D&K Ventures, LLC v. MGC, LLC, No. 09-2084, 2009 WL 1505539, at *8 (D. Kan. May 27, 2009) (recognizing…
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Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa.Super. 2011): Appellant alleges first that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insists there was no evidence substantiating that she was the author of the text messages, nor evidence that drug-related texts ...
Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa.Super. 2011): Appellant alleges first that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insists there was no evidence substantiating that she…
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Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker's compensation scheme to be exclusive of federal remedies. An expected entitlement to benefits under the WDCA [Michigan's Worker's ...
Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker’s compensation scheme to be exclusive of…
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Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited ("Fujitsu") filed suit against Tellabs Operations, Inc. ("Tellabs") in the Eastern District of Texas, charging it with infringing three of Fujitsu's patents for optical amplifiers. 1 A few months later, in June ...
Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited (“Fujitsu”) filed suit against Tellabs Operations, Inc. (“Tellabs”) in the Eastern District of Texas, charging it with infringing three…
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Emails as Business Records — Admissibility Standards

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records hearsay exception. 43 F.3d 443, 450 (9th Cir. 1994). The court reasoned tha ...
Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records…
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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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