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

Class Actions — Rule 23(c)(1)(B) Requires a Readily Discernible, Clear and Precise (1) Statement of the Parameters Defining the Class and (2) Complete List of Claims, Issues or Defenses

Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court's certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the district court judge's certification order complied with Rule 23(c)(1)(B) and (2) whether the two certif ...
Ross v. RBS Citizens, N.A., 2012 U.S. App. LEXIS 1478 (7th Cir. Jan. 27, 2012): Charter One appealed the district court’s certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the…
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Cunningham Dictates that Inherent Power Sanctions, Like Discovery Sanctions, Are Not Appealable on Interlocutory Basis under Collateral Order Doctrine

Douglas v. Merck & Co., 2012 U.S. App. LEXIS 1288 (2d Cir. Jan. 23, 2012): Attorney Gary Douglas, counsel to plaintiff Shirley Boles during the trial of her products liability action against defendant Merck & Co., Inc. ("Merck"), appeals the district court's October 4, 2010 order imposing on him a $2,500 sanction for improperly suggestin ...
Douglas v. Merck & Co., 2012 U.S. App. LEXIS 1288 (2d Cir. Jan. 23, 2012): Attorney Gary Douglas, counsel to plaintiff Shirley Boles during the trial of her products liability action against defendant Merck & Co., Inc. (“Merck”), appeals the…
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May Court Grant Rule 60(b) Relief Sua Sponte? Circuit Split

Reich v. Hallet (In re Hallet), 2011 Bankr. LEXIS 4992 (Bankr. D. Mass. Dec. 19, 2011): Pursuant to Fed. R. Civ. P. 60(b), made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, i ...
Reich v. Hallet (In re Hallet), 2011 Bankr. LEXIS 4992 (Bankr. D. Mass. Dec. 19, 2011): Pursuant to Fed. R. Civ. P. 60(b), made applicable to bankruptcy cases by Fed. R. Bankr. P. 9024, “[o]n motion and just terms, the…
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RICO: Owners of Free Floating Vessels Not Subject to RICO Liability via Outer Continental Shelf Lands Act’s Provisions Extending US Law to Seabed and Permanently or Temporarily Attached Installations

Brown v. Offshore Specialty Fabricators, 663 F.3d 759 (5th Cir. 2011): This appeal involves a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs allege violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) an ...
Brown v. Offshore Specialty Fabricators, 663 F.3d 759 (5th Cir. 2011): This appeal involves a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs allege…
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Securities — 10b-5 Liability for Breach of Contract — Shingle Theory of Broker-Dealer Liability

Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers ("RCM Customers") of Refco Capital Markets, Ltd. ("RCM"), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch's dismissal of their Section 10(b) securities fraud claims against former corporate officers of Ref ...
Capital Management Select Fund v. Bennett, 2012 U.S. App. LEXIS 471 (2d Cir. Jan. 10, 2012): Former customers (“RCM Customers”) of Refco Capital Markets, Ltd. (“RCM”), a subsidiary of the now-bankrupt Refco, Inc., appeal from Judge Lynch’s dismissal of their…
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Arbitration: § 5 of FAA Authorizes Court to Name Substitute Arbitrator when Contractually-Designated One Is Unavailable and Not “Integral” — Circuit Split on Interpretation of § 5

Khan v. Dell, Inc., 2012 U.S. App. LEXIS 1167 (3d Cir. Jan. 20, 2012): This appeal involves a matter of first impression for this Circuit — whether Section 5 of the Federal Arbitration Act (FAA) requires the appointment of a substitute arbitrator when the arbitrator designated by the parties is unavailable.*** I. Factual Backgr ...
Khan v. Dell, Inc., 2012 U.S. App. LEXIS 1167 (3d Cir. Jan. 20, 2012): This appeal involves a matter of first impression for this Circuit — whether Section 5 of the Federal Arbitration Act (FAA) requires the appointment of a…
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Award of Expert Witness Fees as Inherent Power Sanction Where Bad Faith Litigant’s Proffer Excluded — Inherent Power vs. 35 U.S.C. § 285

Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority "to impose sanctions in the form of reasonable expert fees in excess of what is provided for by statute." Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 549 F.3d 1381, 1391 (Fed. Cir. 2008). Use of this inherent a ...
Marctec, LLC v. Johnson & Johnson, 2012 U.S. App. LEXIS 8 (Fed. Cir. Jan. 3, 2012): A district court has inherent authority “to impose sanctions in the form of reasonable expert fees in excess of what is provided for by…
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Denial of Pro Hac Vice Application Due to Frequency of Appearance — Circuit Split as to Whether Pro Hac Appearance Is a Right or a Privilege

Mateo v. Empire Gas Co., 2012 U.S. Dist. LEXIS 6398 (D. P.R. Jan. 19, 2012): Before the Court is pro hac vice attorneys Toby B. Fullmer and W. Douglas Matthews' show cause response (Docket # 97), requesting this court not to set aside their pro hac vice admissions in the case at bar. After a comprehensive analysis of the meaning and pur ...
Mateo v. Empire Gas Co., 2012 U.S. Dist. LEXIS 6398 (D. P.R. Jan. 19, 2012): Before the Court is pro hac vice attorneys Toby B. Fullmer and W. Douglas Matthews’ show cause response (Docket # 97), requesting this court not…
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Cost of Letter of Credit Required to Support Supersedeas Bond Not a Taxable Cost under FRAP. 39(e) Even Though Cost of Bond Is and Cost of LOC in Lieu of Bond Would Be — Circuit Split

Hynix Semiconductor Inc. v. Rambus, Inc., 2012 U.S. Dist. LEXIS 3552 (N.D. Cal. Jan. 11, 2012): The district court may tax "premiums paid for a supersedeas bond or other bond to preserve rights pending appeal." Fed. R. App. P. 39(e)(3). Hynix claims in excess of $8 million in premiums paid for the supersedeas bond it acquired, and in ex ...
Hynix Semiconductor Inc. v. Rambus, Inc., 2012 U.S. Dist. LEXIS 3552 (N.D. Cal. Jan. 11, 2012): The district court may tax “premiums paid for a supersedeas bond or other bond to preserve rights pending appeal.” Fed. R. App. P. 39(e)(3).…
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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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