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

Removal — When Does a State Court Complaint that Fails to Recite a Damages Number over $75,000 Trigger § 1446(b)’s 30-Day Period? Caselaw Split

Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff's original complaint triggers 28 U.S.C. § 1446(b)'s thirty-day clock "only when [the] pleading affirmatively reveals on its face that the plaintiff is see ...
Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff’s original complaint triggers 28 U.S.C. § 1446(b)’s thirty-day clock “only…
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Simple Mistake, Corrected when Realized, Forms No Ground for Rule 11 Sanctions

Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court's decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir. 2009); Jones v. Int'l Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 19 ...
Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court’s decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v.…
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Inherent Power Sanctions against Third Party Entered after End of Case on Merits Is Dispositive and Requires De Novo Review of Magistrate Judge’s Decision

Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge's power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a district court may "designate a magistrate judge to hear and determine any pretrial matter pending ...
Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge’s power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a…
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Non-Pretextual, Compensatory Payment to Former Employee for Time as Deponent and in Preparation Ethical, As Is Representation by Former Employer’s Counsel

Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants ..., alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§ 201(b)(3), (c)(2), O.R.C. § 2921.02(E), and Rule 3.4 of the Ohio Rules of Professio ...
Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants …, alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§…
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Suspension by State Authorities Does Not Disqualify Lawyer from Appearing in Federal Court

Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): ... Plaintiff's attorney is currently suspended from the practice of law in New York State. ... By an order issued by the Committee on Grievances of the Southern District of New York, [Plaintiff's attorney], also previously suspended from ...
Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): … Plaintiff's attorney is currently suspended from the practice of law in New York State. … By an order issued by the Committee on Grievances of…
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Caselaw Split as to Whether to Permit Discovery of Financial Information Relevant to a Determination of Punitive Damages Prior to Summary Judgment

Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, "[c]ourts in this circuit are split on the issue of allowing pretrial disclosure of financial information relevant to a determination of punitive damages. ...
Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, “[c]ourts in this circuit are split on the issue of allowing pretrial…
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Only U.S. Citizenship of Dual Citizen Counts for Diversity — No General Duty under Rule 11 to Withdraw (Just Not to Reassert), but Failure to Withdraw within Safe Harbor Exposes Target to Costs of Motion

Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst ("Wolfgang" or "the Plaintiff") commenced this action against his now former wife Hannelore Fuerst ("Hannelore" or "the Defendant") seeking economic and emotional damages based on her alleged misconduct during their divorce proceeding. The Defendant ...
Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst (“Wolfgang” or “the Plaintiff”) commenced this action against his now former wife Hannelore Fuerst (“Hannelore” or “the Defendant”) seeking economic and emotional damages based on her…
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Simple Mutual Releases of Parties Do Not Release Sanctions Liability of Counsel — Ethics Implications of Negotiating a Release of Sanctions Exposure

Ferguson v. Valero Energy Corp., 2011 U.S. App. LEXIS 24167 (3d Cir. Dec. 6, 2011): John Ferguson died tragically from nitrogen asphyxiation while working as a boilermaker at an oil refinery. A wrongful death and survival action ensued against Valero Energy Corporation and Premcor Refining Group, Inc. The District Court made several evid ...
Ferguson v. Valero Energy Corp., 2011 U.S. App. LEXIS 24167 (3d Cir. Dec. 6, 2011): John Ferguson died tragically from nitrogen asphyxiation while working as a boilermaker at an oil refinery. A wrongful death and survival action ensued against Valero…
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When an Unexplained Sanctions Ruling Does, or Does Not, Suffice to Permit Meaningful Appellate Review

Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court's decision to deny sanctions, costs, and attorney's fees. *** "A district court abuses its discretion if it applies an incor ...
Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court’s decision to deny sanctions, costs, and attorney’s…
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Affidavit Authenticating Website Evidence Must State that Affiant Visited Site and Screen Shots Accurately Portray What Witness Saw — Authentication of Internet Archive Evidence

Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)( ...
Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence,…
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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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