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

Securities — If Group Pleading Is Dead, Is Collective or Corporate Scienter Alive? Circuit Split

Rahman v. Kid Brands, Inc., 2012 U.S. Dist. LEXIS 31406 (D.N.J. Mar. 8, 2012): In Winer Family Trust, the Third Circuit was asked to consider, inter alia, whether plaintiff former shareholders of Pennexx Foods could assert liability on the part of individual defendant directors and officers of Pennexx and Smithfield Foods on the basis of ...
Rahman v. Kid Brands, Inc., 2012 U.S. Dist. LEXIS 31406 (D.N.J. Mar. 8, 2012): In Winer Family Trust, the Third Circuit was asked to consider, inter alia, whether plaintiff former shareholders of Pennexx Foods could assert liability on the part…
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Circuit Split: Is There a “Dangerous Patient” Exception to Psychotherapist-Patient Privilege? — 8th Circuit Says No — Statement to Emergency Room Admitting Physician’s Assistant Not Privileged — Elements of Privilege

United States v. Ghane, 2012 U.S. App. LEXIS 4990 (8th Cir. Mar. 9, 2012): In the normal course, "[w]e review the district court's admission of testimony for an abuse of discretion." United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000). However, because this case encounters the delineation of a federal testimonial privile ...
United States v. Ghane, 2012 U.S. App. LEXIS 4990 (8th Cir. Mar. 9, 2012): In the normal course, “[w]e review the district court’s admission of testimony for an abuse of discretion.” United States v. Bad Wound, 203 F.3d 1072, 1075…
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May a District Court, in De Novo Review of a Magistrate Judge’s Report and Recommendation, Consider New Evidence Not Proffered to the Magistrate Judge? Circuit Split

Muhammad v. Close, 798 F. Supp. 2d 869 (E.D. Mich. 2011) (reviewing summary judgment R&R): The Magistrate Judge Act, 28 U.S.C. § 636 et seq., requires a reviewing district court judge to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of ...
Muhammad v. Close, 798 F. Supp. 2d 869 (E.D. Mich. 2011) (reviewing summary judgment R&R): The Magistrate Judge Act, 28 U.S.C. § 636 et seq., requires a reviewing district court judge to “make a de novo determination of those portions…
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No Sanctions for Failure to Impose Litigation Hold and Consequent Destruction of Emails in IT Consolidation — No Bad Faith

Strutton v. Meade, 2012 U.S. App. LEXIS 2117 (8th Cir. Feb. 3, 2012): Finally, we address Strutton's appeal of the district court's denial of sanctions against defendants. The district court retains an inherent power to impose sanctions, and we review the use of that authority for abuse of discretion. Stevenson v. Union Pac. RR. Co., 35 ...
Strutton v. Meade, 2012 U.S. App. LEXIS 2117 (8th Cir. Feb. 3, 2012): Finally, we address Strutton’s appeal of the district court’s denial of sanctions against defendants. The district court retains an inherent power to impose sanctions, and we review…
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Injunctions — Circuit Split as to Whether Likelihood of Success Must Be Shown or Balancing Approach Retains Validity

Allstate Ins. Co. v. Warns, 2012 U.S. Dist. LEXIS 26174 (D. Md. Feb. 29, 2012): The standard for awarding preliminary injunctive relief is governed by Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008). A plaintiff seeking a preliminary injunction must establish (1) he is likely to succeed on the merits, (2) he is ...
Allstate Ins. Co. v. Warns, 2012 U.S. Dist. LEXIS 26174 (D. Md. Feb. 29, 2012): The standard for awarding preliminary injunctive relief is governed by Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008). A plaintiff seeking…
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RICO — Hobbs Act Predicate Requires Proof that Defendant Deprived Victim of Property Valuable in Defendants’ Hands — Circuit Split as to Whether Increasing Chances of Winning Contract by Destroying Competitor Suffices

United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): On October 3, 2007, a federal grand jury in the Western District of New York returned a 21-count indictment charging David Cain, his brother Chris Cain, and their cousin Jamie Soha with participating in and conspiring to participate in the conduct of the affairs o ...
United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): On October 3, 2007, a federal grand jury in the Western District of New York returned a 21-count indictment charging David Cain, his brother Chris Cain,…
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Outside of Civil Rights Cases, Request to Amend Complaint Must Be Accompanied by Proposed Amendment (Third Circuit)

Delrio-Mocci v. Connolly Properties Inc., 2012 U.S. App. LEXIS 3698 (3d Cir. Feb. 24, 2012): Bolmer also argues that the District Court abused its discretion by refusing to allow him to amend his complaint for a third time in order to plead additional facts that would demonstrate that the Property Managers prevented their undocumented r ...
Delrio-Mocci v. Connolly Properties Inc., 2012 U.S. App. LEXIS 3698 (3d Cir. Feb. 24, 2012): Bolmer also argues that the District Court abused its discretion by refusing to allow him to amend his complaint for a third time in order…
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Denial of Summary Judgment Motion Not Appealable after Trial on the Merits

Turner v. Ramo, LLC, 2012 U.S. App. LEXIS 3568 (11th Cir. Feb. 23, 2012): On appeal, the Ramo Company argues only that the district court erred in denying its pretrial motion for summary judgment. It is well-settled that we "will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the ...
Turner v. Ramo, LLC, 2012 U.S. App. LEXIS 3568 (11th Cir. Feb. 23, 2012): On appeal, the Ramo Company argues only that the district court erred in denying its pretrial motion for summary judgment. It is well-settled that we “will…
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When Is Error Plain?

United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011): "Generally an error is plain if it contradicts circuit or Supreme Court precedent." In re Sealed Case, 573 F.3d 844, 851, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). The district court's instructions contradicted no precedents of this Court or the Supreme Court. Rarely do we ...
United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011): “Generally an error is plain if it contradicts circuit or Supreme Court precedent.” In re Sealed Case, 573 F.3d 844, 851, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). The…
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Securities: Morrison Requires Either Irrevocable Liability Incurred, or Title Transferred, in U.S. — Not Mere Use of U.S. Broker-Dealer — Applicability of §10(b) Goes to Merits, Not Subject Matter Jurisdiction

Absolute Activist Value Master Fund Limited v. Ficeto, 2012 U.S. App. LEXIS 4258 (2d Cir. Mar. 1, 2012): This case requires us to determine whether foreign funds' purchases and sales of securities issued by U.S. companies brokered through a U.S. broker-dealer constitute "domestic transactions" pursuant to Morrison v. National Australia ...
Absolute Activist Value Master Fund Limited v. Ficeto, 2012 U.S. App. LEXIS 4258 (2d Cir. Mar. 1, 2012): This case requires us to determine whether foreign funds’ purchases and sales of securities issued by U.S. companies brokered through a U.S.…
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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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