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

RICO Pleading and Particularity Requirements

Cory v. Straub Int’l, 2012 Kan. App. Unpub. LEXIS 10 (Kan. Ct. App. Jan. 6, 2012): Bill J. Cory, acting pro se, sued the defendants, Straub International, Ron Straub, and Scott DeWerff after he purchased from them a used piece of farm equipment known as a swather. He alleged the machine did not operate properly and the defendants had v ...
Cory v. Straub Int’l, 2012 Kan. App. Unpub. LEXIS 10 (Kan. Ct. App. Jan. 6, 2012): Bill J. Cory, acting pro se, sued the defendants, Straub International, Ron Straub, and Scott DeWerff after he purchased from them a used piece…
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Circuit Has Jurisdiction to Hear Immediately Appealable Issue — E.g., FSIA, Arbitration or Injunction Rulings — Despite Fact That District Court Simultaneously Transferred Case Outside Circuit for Litigation

Wye Oak Tech., Inc. v. Rep. of Iraq, 2011 U.S. App. LEXIS 25945 (4th Cir. Dec. 29, 2011): In Technosteel, [LLC v. Beers Constr. Co., 271 F.3d 151 (4th Cir. 2001),] we held, "under any view of the jurisdictional limitations imposed by [28 U.S.C] § 1294(1) and its interplay with a [28 U.S.C] § 1404(a) transfer, precedent simply does ...
Wye Oak Tech., Inc. v. Rep. of Iraq, 2011 U.S. App. LEXIS 25945 (4th Cir. Dec. 29, 2011): In Technosteel, [LLC v. Beers Constr. Co., 271 F.3d 151 (4th Cir. 2001),] we held, “under any view of the jurisdictional limitations…
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Spoliation — How Important Is the Electronic “Original” of a Document? — Dismissal Sanction Reversed Where Evidence Consistent with Inadvertence, and Originals Only Desultorily Sought — Unclean Hands Defense to Sanctions

Bull v. UPS, Inc., 2012 U.S. App. LEXIS 54 (3d Cir. Jan. 4, 2012): Bull, a part-time employee since 1986, injured her neck and shoulder on the job in late December 2005. Though she promptly reported the incident and requested medical attention the following day, there was a two-week delay before she had access to a company doctor. She a ...
Bull v. UPS, Inc., 2012 U.S. App. LEXIS 54 (3d Cir. Jan. 4, 2012): Bull, a part-time employee since 1986, injured her neck and shoulder on the job in late December 2005. Though she promptly reported the incident and requested…
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Does Rule 15(b)(2), Which Governs Amendment of Pleadings by Consent by Trying Unpled Issues, Apply at Pretrial Stage? Circuit Split — Reconsideration Standards under Rule 59(e)

ACE USA v. Union Pacific RR, 2011 U.S. Dist. LEXIS 141228 (D. Kan. Dec. 7, 2011): Insurance companies ACE USA and ACE European Group Limited, as subrogees of AGC Soda Corporation ("AG Soda"), bring suit against Union Pacific Railroad Company, Inc. Plaintiffs allege that defendant is liable under the Carmack Amendment to the Interstate C ...
ACE USA v. Union Pacific RR, 2011 U.S. Dist. LEXIS 141228 (D. Kan. Dec. 7, 2011): Insurance companies ACE USA and ACE European Group Limited, as subrogees of AGC Soda Corporation (“AG Soda”), bring suit against Union Pacific Railroad Company,…
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Order Disqualifying Counsel Reviewable by Mandamus — Contractual Waiver of Conflict Enforceable

From In re Shared Memory Graphics LLC, 2011 U.S. App. LEXIS 19414 (Fed. Cir. Sept. 22, 2011): This petition arises out of SMG's patent infringement suit against Nintendo, Apple, Inc., Samsung Electronics Co., and Sony Corporation of America. SMG's claims against Nintendo--the only party that sought disqualification here--involve the "H ...
From In re Shared Memory Graphics LLC, 2011 U.S. App. LEXIS 19414 (Fed. Cir. Sept. 22, 2011): This petition arises out of SMG’s patent infringement suit against Nintendo, Apple, Inc., Samsung Electronics Co., and Sony Corporation of America. SMG’s claims…
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Is District Court Automatically Divested of Jurisdiction when Party Appeals Order Denying Motion to Compel Arbitration? Circuit Split

Tillman v. Macy’s Inc., 2012 U.S. Dist. LEXIS 510 (E.D. Mich. Jan. 4, 2012): "Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split." Weingarten Realty Investors v. Miller, 661 F.3d 904, 907 (5th Cir. 2011). ...
Tillman v. Macy’s Inc., 2012 U.S. Dist. LEXIS 510 (E.D. Mich. Jan. 4, 2012): “Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject…
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Outside of RICO and Clayton Act, Statutory Phrase “By Reason Of” Generally Denotes But-For, Not Proximate, Causation

UMG Recordings, Inc.v. Shelter Capital Partners LLC, 2011 U.S. App. LEXIS 25168 (9th Cir. Dec. 20, 2011): Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one of the world's largest recorded music and music publishing companies, and includes r ...
UMG Recordings, Inc.v. Shelter Capital Partners LLC, 2011 U.S. App. LEXIS 25168 (9th Cir. Dec. 20, 2011): Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users. Universal Music Group (UMG) is one…
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In Ruling on Motion to Amend after Scheduling Order Deadline, Court Need Not Consider Lack of Prejudice to Adversary — Only Diligence Must Be Considered

Kodak Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 U.S. Dist. LEXIS 148853 (W.D.N.Y. Dec. 28, 2011): On June 26, 2009, [Magistrate] Judge Payson entered a stipulated scheduling order, setting the deadline to file any motions to amend the pleadings as July 31, 2009. *** On September 20, 2010, fourteen months ...
Kodak Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., 2011 U.S. Dist. LEXIS 148853 (W.D.N.Y. Dec. 28, 2011): On June 26, 2009, [Magistrate] Judge Payson entered a stipulated scheduling order, setting the deadline to file any…
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Disqualification — May a Party Who Is Not a Current or Former Client Move to Disqualify on Conflict-of-Interest Grounds? Circuit Split

IMCO, LLC v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011): A complaining party who files a motion to disqualify an attorney must first have standing to do so. Blue Water Sunset, LLC v. Markowitz, 195 Cal. App. 4th 477, 486 (2011). The circuits are split on the issue of whether an attorney can be disqualified on the g ...
IMCO, LLC v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011): A complaining party who files a motion to disqualify an attorney must first have standing to do so. Blue Water Sunset, LLC v. Markowitz, 195 Cal.…
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Injunctions — Circuit Split as to Continuing Vitality of Sliding Scale Approach to Injunctive Relief

United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: "(1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injuncti ...
United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011): Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: “(1) the plaintiff has a substantial likelihood of success on the merits;…
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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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