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

Reasonable Application of Governing Legal Standard to the Facts Satisfies Abuse-of-Discretion Standard

Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): "An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence." Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (internal quotation marks omitted). In Pruitt v. Mote, 503 ...
Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): “An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence.” Gastineau v. Wright,…
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Securities — Required Elements of Proof on Class Certification — Must Plaintiff Prove Materiality? Circuit Split

From Conn. Retirement Plans & Trust Funds v. Amgen, 2011 U.S. App. LEXIS 22540 (9th Cir. Nov. 8, 2011): To obtain class certification in a 10b-5 securities fraud case, the plaintiff, as required by Federal Rule of Civil Procedure 23(b)(3), must convince the district court that the element of reliance is common to the class. The Supreme ...
From Conn. Retirement Plans & Trust Funds v. Amgen, 2011 U.S. App. LEXIS 22540 (9th Cir. Nov. 8, 2011): To obtain class certification in a 10b-5 securities fraud case, the plaintiff, as required by Federal Rule of Civil Procedure 23(b)(3),…
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Appeal from Denial of Motion to Compel Arbitration Does Not Divest District Court of Jurisdiction to Proceed to Merits — Circuit Split

Weingarten Realty Inv. v. Miller, 2011 U.S. App. LEXIS 23649 (5th Cir. Nov. 1, 2011): 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. The Second and Ninth Circuits have held that a stay is not automatic. ...
Weingarten Realty Inv. v. Miller, 2011 U.S. App. LEXIS 23649 (5th Cir. Nov. 1, 2011): 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…
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Order Stating that Counsel’s Conduct Warranted Rule 11 Sanctions but Expressly Declining to Impose Any Is Not Appealable

Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011): At the end of that order [confirming an arbitration award], the district court stated about Omega's counsel, Scott Rothenberg: As a final matter, and for the reasons discussed above, Omega has forced N'S ...
Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011): At the end of that order [confirming an arbitration award], the district court stated about Omega’s counsel, Scott Rothenberg: As a final…
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Reconsideration under Rule 60(b)(1) — Circuit Split as to When Mistake, Inadvertence, Surprise or Excusable Neglect by the Court Itself Permits Relief from Judgment

Peak v. Ellis, 2011 Bankr. LEXIS 4322 (9th Cir. BAP Aug. 1, 2011): Peaks contend the bankruptcy court abused its discretion in denying their Motion to Reconsider because it clearly erred by not considering less drastic sanctions, citing FRCP 60(b)(1). While the circuits are split, the Ninth Circuit permits FRCP 60(b)(1) relief from j ...
Peak v. Ellis, 2011 Bankr. LEXIS 4322 (9th Cir. BAP Aug. 1, 2011): Peaks contend the bankruptcy court abused its discretion in denying their Motion to Reconsider because it clearly erred by not considering less drastic sanctions, citing FRCP 60(b)(1).…
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Does Copyright Protection Extend to All Forms of Printed Expression? Case Law Split (Halloween Opinion)

From Liberty Media Holdings, LLC v. Swarm Sharing Has File, 2011 U.S. Dist. LEXIS 125512 (D. Mass. Oct. 31, 2011) (Young, J.): It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Ci ...
From Liberty Media Holdings, LLC v. Swarm Sharing Has File, 2011 U.S. Dist. LEXIS 125512 (D. Mass. Oct. 31, 2011) (Young, J.): It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture…
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Ghostwriting Papers for Pro Se Litigants Does Not Violate Ethical Rules — And Probably Not Rule 11

In re Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. Nov. 22, 2011): This Court's Committee on Attorney Admissions and Grievances ("the Committee") has recommended that Fengling Liu, an attorney admitted to the bar of this Court, be publicly reprimanded. *** In its report, the Committee concluded that there was clear and convincing evid ...
In re Liu, 2011 U.S. App. LEXIS 23326 (2d Cir. Nov. 22, 2011): This Court’s Committee on Attorney Admissions and Grievances (“the Committee”) has recommended that Fengling Liu, an attorney admitted to the bar of this Court, be publicly reprimanded.…
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Fraudulent Joinder — Circuit Splits — “Fraudulent Joinder Has All the Clarity One Would Expect from a Legal Rule Fashioned Entirely from Judges’ Imaginations”

Murriel Don Coal Co. v. Aspen Ins. UK Ltd., 790 F. Supp. 2d 590 (E.D. Ky. 2011): Admittedly, at the heart of fraudulent joinder is an understandable impulse: Plaintiffs should not be able to play games with federal jurisdiction. If a Kentucky plaintiff sues a New York insurance company, he should not be able to tether the case to state ...
Murriel Don Coal Co. v. Aspen Ins. UK Ltd., 790 F. Supp. 2d 590 (E.D. Ky. 2011): Admittedly, at the heart of fraudulent joinder is an understandable impulse: Plaintiffs should not be able to play games with federal jurisdiction. If…
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Turning in Laptop at End of Employment without Claiming Privilege as to Contents Effects Waiver — Senior Executive Charged with Knowledge of Employment Handbook Stating Emails “Are Not Private”

Aventa Learning, Inc. v. K12, Inc., 2011 U.S. Dist. LEXIS 129928 (W.D. Wash. Nov. 8, 2011): Plaintiff Aventa Learning, Inc. ("Aventa") is a Washington corporation founded in 2002 by Mr. Axtman and Mr. Benitez. *** Aventa assists schools in bringing their educational curricula online. *** KCDL is a provider of distance learning progr ...
Aventa Learning, Inc. v. K12, Inc., 2011 U.S. Dist. LEXIS 129928 (W.D. Wash. Nov. 8, 2011): Plaintiff Aventa Learning, Inc. (“Aventa”) is a Washington corporation founded in 2002 by Mr. Axtman and Mr. Benitez. *** Aventa assists schools in bringing…
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Circuit Split as to Whether Failure to Provide 55(b)(2) Notice Renders a Default Judgment Void vs. Voidable — Factors Counseling against Opening Up Default

Green v. Johnson Richards & Co., 2011 U.S. Dist. LEXIS 127181 (M.D. La. Oct. 11, 2011): This matter is before the Court on the Motion to Set Aside and Vacate Default Judgment Pursuant to Fed. R. Civ. P. 60(b)(4) and 60(b)(6) *** On July 30, 2003, plaintiffs filed a "Motion for Entry of Default Pursuant to Rule 55(A) of the Federa ...
Green v. Johnson Richards & Co., 2011 U.S. Dist. LEXIS 127181 (M.D. La. Oct. 11, 2011): This matter is before the Court on the Motion to Set Aside and Vacate Default Judgment Pursuant to Fed. R. Civ. P. 60(b)(4) and…
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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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