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 — Inherent Power Dismissal for Perjury and Forged Document Requires No Prior Warning or Consideration of Lesser Sanctions — Mala in Se and Criminal in Nature — Severity of Sanction Should Be Proportional to Gravity of Offense (Good Quote)

Jackson v. Murphy, 2012 U.S. App. LEXIS 4993 (7th Cir. Mar. 7, 2012): We next turn to the district court's use of its inherent power to sanction Jackson by dismissing his remaining medical claims. We review that dismissal for abuse of discretion. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 20 ...
Jackson v. Murphy, 2012 U.S. App. LEXIS 4993 (7th Cir. Mar. 7, 2012): We next turn to the district court’s use of its inherent power to sanction Jackson by dismissing his remaining medical claims. We review that dismissal for abuse…
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Unjust Enrichment — California Courts Are Split as to Whether It States a Separate Cause of Action

Cortez v. New Century Mortgage Corp., 2012 U.S. Dist. LEXIS 13469 (N.D. Cal. Feb. 3, 2012): California courts are split as to whether there is an independent cause of action for unjust enrichment. Baggett v. Hewlett-Packard Co., 582 F. Supp. 2d 1261, 1270-71 (C.D. Cal. 2007) (applying California law). One view is that it is a general pr ...
Cortez v. New Century Mortgage Corp., 2012 U.S. Dist. LEXIS 13469 (N.D. Cal. Feb. 3, 2012): California courts are split as to whether there is an independent cause of action for unjust enrichment. Baggett v. Hewlett-Packard Co., 582 F. Supp.…
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Court May Award Injunctive Relief While Arbitration Is Pending If Contract Permits Recourse to Court — Circuit Split as to Whether Judicial Injunctive Relief Awardable under FAA Absent Contractual Provision Authorizing It

Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG's request for injunctive relief, before the arbitrator has determined whether Boring violated the employment agreement. The arbitration ag ...
Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG’s request for injunctive relief, before the arbitrator has determined…
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Class Actions — Cy Pres Doctrine Applicable Only Where Plaintiffs Fully Compensated — Reasonable Approximation Test — Unlimited Judicial Discretion Inadvisable

In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group ("the Samsell plaintiffs"), are within a larger class of medical patient consumers in a case alleging fraud in overcharging for the medication Lupron. These plaintiffs, along with insurers and private he ...
In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group (“the Samsell plaintiffs”), are within a larger class of medical patient consumers in a case alleging fraud…
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RICO — Allegedly Inflated Cost of Appraisal in Mortgage Transaction Does Not Constitute Concrete Financial Loss Absent Factual Allegations Demonstrating It Exceeded Market Price or Was Not Independent, as Billed

Gomez v. Wells Fargo Bank, N.A., 2012 U.S. App. LEXIS 7370 (8th Cir. April 12, 2012): Grant A. Gomez and Lanie L. Gomez (the Gomezes) sought to establish a nationwide class of thousands of borrowers who allegedly paid inflated appraisal fees in connection with real estate transactions financed by Wells Fargo Bank, N.A. (Wells Fargo). ** ...
Gomez v. Wells Fargo Bank, N.A., 2012 U.S. App. LEXIS 7370 (8th Cir. April 12, 2012): Grant A. Gomez and Lanie L. Gomez (the Gomezes) sought to establish a nationwide class of thousands of borrowers who allegedly paid inflated appraisal…
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Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability

Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545 (D. Minn. Dec. 19, 2011): As evidence, Basalite relies on printouts of Keystone's website dated 2006 and retrieved from the Internet Archive (or "Wayback Machine"); both patents were filed on November 7, 2008, so an anticipatory reference f ...
Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545 (D. Minn. Dec. 19, 2011): As evidence, Basalite relies on printouts of Keystone’s website dated 2006 and retrieved from the Internet Archive (or “Wayback Machine”);…
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Disqualification: While Prior Representation of Adversary’s Predecessor in Interest May Warrant Disqualification, Representation of Assignor of Rights Does Not — Burden of Proving Specific Confidential Information Posses

My First Shades v. Baby Blanket Suncare, 2012 U.S. Dist. LEXIS 19881 (E.D.N.Y. Feb. 16, 2012): Plaintiffs My First Shades ("MFS") and Venetian Holdings, LLC ("Venetian") brought this action against defendants Baby Blanket Suncare and the Mercer Group, Ltd. ("Mercer"), claiming that defendants have committed, and are continuing to commit ...
My First Shades v. Baby Blanket Suncare, 2012 U.S. Dist. LEXIS 19881 (E.D.N.Y. Feb. 16, 2012): Plaintiffs My First Shades (“MFS”) and Venetian Holdings, LLC (“Venetian”) brought this action against defendants Baby Blanket Suncare and the Mercer Group, Ltd. (“Mercer”),…
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Limits on Equitable Tolling — Exceptions to Client Responsibility for Lawyer Negligence — Gross Negligence vs. Negligence (Good Quote)

Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if "right" is not too strong a word in the area of equity — to equitable tolling. He must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue. Chave ...
Hutchinson v. Florida, 2012 U.S. App. LEXIS 7960 (11th Cir. April 19, 2012): A petitioner has the burden of establishing his right — if “right” is not too strong a word in the area of equity — to equitable tolling.…
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Spoliation — Unsuccessful Applicant’s Emails Asking Why She Was Not Hired Insufficient to Trigger Duty to Preserve — Sixth Circuit Applies Residential Funding Standard — Destruction in Ordinary Course

Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman's ADEA claim stems from USPS's denial of Perryman's application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same position that she held at the South Euclid, Ohio Post Office. Perryman applied ...
Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012): Perryman’s ADEA claim stems from USPS’s denial of Perryman’s application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same…
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Settlement Negotiations Are Not Privileged — Circuit Split — Utility of Rule 26 — Heightened Standard for Discovery

In re MSTG, Inc., 2012 U.S. App. LEXIS 7092 (Fed. Cir. April 9, 2012): This [mandamus] petition arises out of an order of the United States District Court for the Northern District of Illinois compelling MSTG, Inc. ("MSTG") to produce documents related to license negotiation discussions between MSTG and six other companies, including pr ...
In re MSTG, Inc., 2012 U.S. App. LEXIS 7092 (Fed. Cir. April 9, 2012): This [mandamus] petition arises out of an order of the United States District Court for the Northern District of Illinois compelling MSTG, Inc. (“MSTG”) to produce…
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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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