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

Rooker Feldman — Circuit Split as to Whether Doctrine Applies Where State Court Judgment Was Void for Lack of Jurisdiction — Does Apply Where State Court Found (Allegedly in Error) That It Lacked Jurisdiction

Williams v. Williams, 2012 U.S. Dist. LEXIS 24846 (W.D.N.Y. Feb. 20, 2012): Although this Court agrees with Plaintiff that these decisions make clear that his petitions were dismissed, with prejudice, on jurisdictional grounds, whether this means the Rooker-Feldman doctrine does not apply is another question. Some courts have found ...
Williams v. Williams, 2012 U.S. Dist. LEXIS 24846 (W.D.N.Y. Feb. 20, 2012): Although this Court agrees with Plaintiff that these decisions make clear that his petitions were dismissed, with prejudice, on jurisdictional grounds, whether this means the Rooker-Feldman doctrine does…
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Standard for Recusal under 28 U.S.C. § 455

Kolon Indus. v. E.I. duPont de Nemours & Co., 2012 U.S. Dist. LEXIS 21655 (E.D. Va. Feb. 21, 2012): In Liljeberg, the Supreme Court affirmed the Fifth Circuit's "construction of § 455(a)," finding that a violation of the statute "is established when a reasonable person, knowing the relevant facts, would expect that a justice, judge ...
Kolon Indus. v. E.I. duPont de Nemours & Co., 2012 U.S. Dist. LEXIS 21655 (E.D. Va. Feb. 21, 2012): In Liljeberg, the Supreme Court affirmed the Fifth Circuit’s “construction of § 455(a),” finding that a violation of the statute “is…
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Expert May Not Act as Mere Conduit for Hearsay or Vehicle for Factual Narrative — Specific Court-Directed Principles for Experts to Abide by While Testifying

Island Intellectual Property LLC v Deutsche Bank AG, 2012 U.S. Dist. LEXIS 21742 (S.D.N.Y. Feb. 14, 2012): In determining where to draw appropriate lines, the court must consider whether an expert's proposed testimony would usurp the province of the judge to instruct on the law, or of the jury to make factual determinations. Se ...
Island Intellectual Property LLC v Deutsche Bank AG, 2012 U.S. Dist. LEXIS 21742 (S.D.N.Y. Feb. 14, 2012): In determining where to draw appropriate lines, the court must consider whether an expert’s proposed testimony would usurp the province of the judge…
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Sanctions — No Abuse of Discretion Where Court Applied Correct Legal Standard and Sanction Was Is Neither Illogical, Implausible Nor without Support in the Record

Plata v. Darbun Enters., 2012 U.S. App. LEXIS 3074 (9th Cir. Feb. 13, 2012): Plaintiffs appeal the grant of sanctions under 28 U.S.C. § 1927 and the amount awarded. Darbun cross-appeals the amount of sanctions awarded. The district court did not abuse its discretion by imposing sanctions. United States v. Hinkson, 585 F.3d 1247, 1251 ...
Plata v. Darbun Enters., 2012 U.S. App. LEXIS 3074 (9th Cir. Feb. 13, 2012): Plaintiffs appeal the grant of sanctions under 28 U.S.C. § 1927 and the amount awarded. Darbun cross-appeals the amount of sanctions awarded. The district court did…
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District Courts Are Bound by Circuit Precedent No Matter How Erroneous They Perceive It to Be

Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner's counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co., 812 F.2d 443 (9th Cir. 1987) ("District courts are, of course, bound by the law of their own ...
Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner’s counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co.,…
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If an Arbitration Award Is Overturned Because the Arbitrator Exceeded His or Her Powers, It Should be Reheard by a Different Arbitrator

Muskegon Central Dispatch 911 v. Tiburon, Inc., 2012 U.S. App. LEXIS 2149 (6th Cir. Feb. 2, 2012) (reviewing a Federal Arbitration Act arbitration): The Michigan Court Rules permit a court to vacate an arbitration order and remand for rehearing. Mich. Comp. Laws § 3.602(J). However, the functus officio doctrine provides the circums ...
Muskegon Central Dispatch 911 v. Tiburon, Inc., 2012 U.S. App. LEXIS 2149 (6th Cir. Feb. 2, 2012) (reviewing a Federal Arbitration Act arbitration): The Michigan Court Rules permit a court to vacate an arbitration order and remand for rehearing. Mich.…
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Circuit Split: May a State Court Litigant against an Insured Intervene in a Federal Declaratory Judgment Action Brought by Insurer against Insured?

Am. Cas. Co. of Reading, Pa. v. Continental Properties, Inc., 2012 U.S. Dist. LEXIS 21949 (S.D. Ohio Feb. 22, 2012): There is a split in circuit authority on the issue of whether a state court litigant against an insurance company's insured may intervene in a federal court declaratory judgment action brought by the insurance company ...
Am. Cas. Co. of Reading, Pa. v. Continental Properties, Inc., 2012 U.S. Dist. LEXIS 21949 (S.D. Ohio Feb. 22, 2012): There is a split in circuit authority on the issue of whether a state court litigant against an insurance company’s…
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Circuit Split as to Whether 404(b) Ruling Is Reviewed De Novo or under Abuse-of-Discretion Standard (Criminal Case)

Davis v. Swarthout, 2012 U.S. Dist. LEXIS 15630 (E.D. Cal. Feb. 7, 2012): Federal Rule of Evidence 404, as does its counterpart, California Evidence Code § 1101, generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in t ...
Davis v. Swarthout, 2012 U.S. Dist. LEXIS 15630 (E.D. Cal. Feb. 7, 2012): Federal Rule of Evidence 404, as does its counterpart, California Evidence Code § 1101, generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect…
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Incorporation of Arbitration Clause By Reference in Agreement with Non-Signatory — Circuit Split as to Degree of Specificity Required

Pineda v. Coverall No. Am., Inc., 2012 U.S. Dist. LEXIS 16742 (D. Mass. Feb. 10, 2012): Contract law recognizes that incorporation by reference is generally effective to accomplish its intended purpose, and that arbitration agreements may be incorporated by reference. A non-signatory may compel arbitration against a party to an arbi ...
Pineda v. Coverall No. Am., Inc., 2012 U.S. Dist. LEXIS 16742 (D. Mass. Feb. 10, 2012): Contract law recognizes that incorporation by reference is generally effective to accomplish its intended purpose, and that arbitration agreements may be incorporated by reference.…
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RICO — Fact that Criminal Prosecution Interrupted Racketeering Activity Irrelevant in Assessing Open-Ended Continuity

Heinrich v. Waiting Angels Adoption Servs., Inc., 2012 U.S. App. LEXIS 2390 (6th Cir. Feb. 7, 2012): The plaintiffs are seven couples who enlisted the assistance of the Waiting Angels Adoption Services, Inc. ("Waiting Angels") in an attempt to adopt children from Guatemala. Believing that they were defrauded in the course of their adopt ...
Heinrich v. Waiting Angels Adoption Servs., Inc., 2012 U.S. App. LEXIS 2390 (6th Cir. Feb. 7, 2012): The plaintiffs are seven couples who enlisted the assistance of the Waiting Angels Adoption Services, Inc. (“Waiting Angels”) in an attempt to adopt…
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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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