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

Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners' primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive the privilege as to the world at large. That is, they urge that we adopt the theory ...
In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners’ primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive…
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Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of Cook, Ill., 170 F.3d 1084 (Fed. Cir. 1999) (approving transfer of some, but not all, claims); FDIC v. ...
Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of…
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Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. "A motion to dismiss for want of standing is . . . properly brought pursuant to Rule 12(b) ...
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear…
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Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file "a formal motion, with notice to defense counsel, seeking permission for the child complainant's mother to speak at ]prosecutor had refused to do as he asked that he ...
United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file “a formal motion, with notice to defense counsel, seeking…
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Unretained Experts — Broad, Summary Disclosures under Rule 26(a)(2)(C) Sufficient

Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana Lance. Dr. Alexander will testify regarding psychological and special education a ...
Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana…
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Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions

Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly's destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she sought sanctions under Fed. R. Civ. P. 37; accordingly, she is limited to "seek[ing] sanction ...
Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly’s destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she…
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In Forma Pauperis Lawsuits Should Generally Not be Dismissed for Lack of Venue, but Rather Transferred — Error Harmless, However, Where No Conceivable Basis for Venue and No Prejudice

Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP statute] contains no express authorization for a dismissal for lack of venue. In th ...
Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP…
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Federal Circuit Extends Federal Jurisdiction to All Patent-Related Legal Malpractice Claims, Even Where No Patent Has Issued and No Actual Patent Rights Are at Stake

Byrne v. Wood, Herron & Evans, LLP, 2012 U.S. App. LEXIS 6021 (Fed. Cir. Mar. 22, 2012) (denial of petition for rehearing en banc): Dyk, J., Concurring Under the Supreme Court's decision in Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809 (1988), federal jurisdiction under 28 U.S.C. § 1338 exist ...
Byrne v. Wood, Herron & Evans, LLP, 2012 U.S. App. LEXIS 6021 (Fed. Cir. Mar. 22, 2012) (denial of petition for rehearing en banc): Dyk, J., Concurring Under the Supreme Court’s decision in Christianson v. Colt Industries Operating Corp., 486…
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“Confusing Overlap” of Contempt vs. Other Sanctions Powers — Higher Burden of Proof If Contempt — Judge’s Duty to Justify Sanctions Imposed (Good Quote)

Securities and Exchange Commission v. First Choice Mgmt. Servs., Inc., 2012 U.S. App. LEXIS 8788 (7th Cir. May 1, 2012): So the order was violated; but was the sanction proper? Judges have inherent authority to impose sanctions for misconduct by litigants, their lawyers, witnesses, and others who participate in a lawsuit over which the j ...
Securities and Exchange Commission v. First Choice Mgmt. Servs., Inc., 2012 U.S. App. LEXIS 8788 (7th Cir. May 1, 2012): So the order was violated; but was the sanction proper? Judges have inherent authority to impose sanctions for misconduct by…
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Email Admissibility — Double Hearsay Satisfied by (1) Business Record Incorporating (2) Admission — 801(d)(2)(B) Does Not Require Employee Have Ability to Bind Employer — Junior Status of Employee Goes to Weight

In re Tribune Co., 2012 Bankr. LEXIS 1563 (Bankr. D. Del. April 9, 2012): In preparing his response to the Bigelow Email, Peter Cohen of JPMorgan contacted another JPMorgan employee, Joachim Sonne, who advised by email: Talked to EGI, Chris Hochschild, and he confirmed that they see their security as the most jun ...
In re Tribune Co., 2012 Bankr. LEXIS 1563 (Bankr. D. Del. April 9, 2012): In preparing his response to the Bigelow Email, Peter Cohen of JPMorgan contacted another JPMorgan employee, Joachim Sonne, who advised by email: Talked to EGI, Chris…
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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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