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

Party’s Motion for a Stay Pending a Decision in Another Case to Which It Is Not a Party Is a Motion for an Indefinite Stay — Standards for Indefinite Stay

Red River Coal Co. v. United States, 2012 U.S. Claims LEXIS 32 (Fed. Cl. Jan. 31, 2012): When determining whether to issue an indefinite stay, the Court must (1) "identify a pressing need for the stay" and (2) "balance interests favoring a stay against interests frustrated by the action." Cherokee Nation of Okla., 124 F.3d at 1 ...
Red River Coal Co. v. United States, 2012 U.S. Claims LEXIS 32 (Fed. Cl. Jan. 31, 2012): When determining whether to issue an indefinite stay, the Court must (1) “identify a pressing need for the stay” and (2) “balance interests…
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Mere Testimony or Interrogatory Answer that Party Relied on Advice of Counsel Does Not Waive Privilege as Long as No Affirmative Defense of Advice of Counsel Is Asserted

BancInsure, Inc. v. Peoples Bank of the South, 2012 U.S. Dist. LEXIS 5326 (S.D. Miss. Jan. 18, 2012): Peoples Bank does not contest specific documents identified on the privilege log. Rather, it makes a blanket argument that the attorney-client privilege is waived for all withheld documents based BancInsure's assertion of reliance on ad ...
BancInsure, Inc. v. Peoples Bank of the South, 2012 U.S. Dist. LEXIS 5326 (S.D. Miss. Jan. 18, 2012): Peoples Bank does not contest specific documents identified on the privilege log. Rather, it makes a blanket argument that the attorney-client privilege…
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Updated Article on Internet & Email Evidence (Part 1)

An updated version of Internet and Email Evidence (with additional focus on social media), as published this month in The Practical Litigator, is available here. Part 2 will be published in April. Reprinted with permission ...
An updated version of Internet and Email Evidence (with additional focus on social media), as published this month in The Practical Litigator, is available here. Part 2 will be published in April. Reprinted with permission. Subsequent note: Part 2…
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No Rule 11 Sanctions for Conduct in State Court — Injunction Void under Rule 65(d) for Vagueness and for Proscribing Lawful Acts

Blanco River, LLC v. Green, 2012 U.S. App. LEXIS 378 (5th Cir. Jan. 6, 2012): Blanco River, L.L.C., a real estate investment vehicle, is a limited liability Arizona corporation that sought to purchase and develop land bordering the Blanco River in Texas. Green was the manager of this venture, which failed. Blanco River sued Green, alleg ...
Blanco River, LLC v. Green, 2012 U.S. App. LEXIS 378 (5th Cir. Jan. 6, 2012): Blanco River, L.L.C., a real estate investment vehicle, is a limited liability Arizona corporation that sought to purchase and develop land bordering the Blanco River…
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Arbitration — Second Circuit Sets High Threshold to Overturn Award on Grounds of “Evident Partiality” — Adopts Fourth Circuit Standards — Non-Disclosure Rarely Sufficient

Scandinavian Reins. Co. v. St. Paul F&M Ins. Co., 2012 U.S. App. LEXIS 2082 (2d Cir. Feb. 3, 2012): The primary question presented on this appeal is whether the failure of two arbitrators to disclose their concurrent service as arbitrators in another, arguably similar, arbitration constitutes "evident partiality" within the meaning ...
Scandinavian Reins. Co. v. St. Paul F&M Ins. Co., 2012 U.S. App. LEXIS 2082 (2d Cir. Feb. 3, 2012): The primary question presented on this appeal is whether the failure of two arbitrators to disclose their concurrent service as arbitrators…
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RICO — Horizontal and Vertical Relatedness

United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): The substantive RICO provision under which the defendants were convicted makes it unlawful for "any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a ...
United States v. Cain, 2012 U.S. App. LEXIS 1772 (2d Cir. Jan. 31, 2012): The substantive RICO provision under which the defendants were convicted makes it unlawful for “any person employed by or associated with any enterprise . . .…
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Standards for Deposing Opposing Counsel — Claim for Attorney’s Fees Does Not Open Door to Deposition

United States Liab. Ins. Co. v. Goldin Metals, Inc., 2012 U.S. Dist. LEXIS 4881 (S.D. Miss. Jan. 17, 2011): The Goldins are defendants in a related civil suit filed in the United States District Court for the Northern District of Georgia. *** The Goldins tendered defense of the NCI lawsuit to Plaintiff, United States Liability Insurance ...
United States Liab. Ins. Co. v. Goldin Metals, Inc., 2012 U.S. Dist. LEXIS 4881 (S.D. Miss. Jan. 17, 2011): The Goldins are defendants in a related civil suit filed in the United States District Court for the Northern District of…
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Impact of Daubert at Class Certification — Conflicting Circuit Views

Third Circuit: “[The district court] need not turn class certification into a mini-trial.... We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence, and ...
Third Circuit: “[The district court] need not turn class certification into a mini-trial…. We understand the Court’s observation [i.e., the Supreme Court’s observation in Dukes] to require a district court to evaluate whether an expert is presenting a model which…
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Extraterritorial Reach of RICO — Is Test Location of Enterprise or of Pattern? — No Proximate Cause between Money Laundering Predicate and Pretextual Firing

Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño ... [f]irst ... contends that his claim fits within the scope of RICO's domestic application because it alleges conduct in the United States that is within RICO's "focus." See Morr ...
Cedeño v. Castillo, 2012 U.S. App. LEXIS 1469 (2d Cir. Jan. 25, 2012) (affirming the decision excerpted in our post of October 10, 2010): On appeal, Cedeño … [f]irst … contends that his claim fits within the scope of RICO’s…
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Inherent Power Sanction Imposed on Attorney for Failure to Monitor ECF and Missing a Hearing That Was Noticed Only Electronically and Just Two Days before the Hearing Date

United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney ... was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing for his client, a criminal defendant. We affirm the issuance of the sanction, but reduce the ...
United States v. Romero-Lopez, 2011 U.S. App. LEXIS 22897 (1st Cir. Nov. 16, 2011): Attorney … was sanctioned by the district court, under its inherent powers, in the amount of $1,500 for failing to appear at the rescheduled sentencing hearing…
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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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