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 Teleconference on December 6, 2011 — Differences between Federal and State RICO Statutes and Litigation

On Tuesday, December 6, 2011, from 1 - 2 p.m. EST, the ABA Antitrust Law Section will be hosting a teleconference seminar on the salient differences between federal and state RICO statutes and litigation. The featured speaker is John Floyd, the nation's leading expert on state RICO statutes and litigation (the second edition of his RICO State by State, A Guide t ...
On Tuesday, December 6, 2011, from 1 – 2 p.m. EST, the ABA Antitrust Law Section will be hosting a teleconference seminar on the salient differences between federal and state RICO statutes and litigation. The featured speaker is John Floyd,…
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While District Court May Not Bar Party from Filing a Motion, It May Construe a Detailed Premotion Letter as a Motion and Act on It, without Affording Opportunity to File Additional Papers

Best Payphones, Inc. v. Manhattan Telecommc’ns Corp., 2011 U.S. App. LEXIS 23528 (2d Cir. Nov. 23, 2011): ***Best's proposed motion [for § 1927 sanctions] lacked merit. In its Pre-motion Letter, Best argued that MetTel's statements were irreconcilable or inconsistent with the record. In fact, the claims and arguments to which Best ob ...
Best Payphones, Inc. v. Manhattan Telecommc’ns Corp., 2011 U.S. App. LEXIS 23528 (2d Cir. Nov. 23, 2011): ***Best’s proposed motion [for § 1927 sanctions] lacked merit. In its Pre-motion Letter, Best argued that MetTel’s statements were irreconcilable or inconsistent with…
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Attorney’s Call to Represented Party to Obtain Information to Effect Service Does Not Warrant Disqualification, But It Is Improper for Attorney to Rely on Anything Else Said on the Call

Ortiz v. Green Bull, Inc., 2011 U.S. Dist. LEXIS 131600 (E.D.N.Y. Nov. 14, 2011)L Presently before the Court is a motion by Werner to seal the record and for other relief based on ... an alleged violation of the New York Rules of Professional Conduct by counsel for the Plaintiff, Mark Panzavecchia based on a telephone conversation betw ...
Ortiz v. Green Bull, Inc., 2011 U.S. Dist. LEXIS 131600 (E.D.N.Y. Nov. 14, 2011)L Presently before the Court is a motion by Werner to seal the record and for other relief based on … an alleged violation of the New…
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Reconsideration Standards

Kalinoski v. Lackawanna County, 2011 U.S. Dist. LEXIS 124249 (M.D.Pa. Oct. 26, 2011): A motion for reconsideration is governed by Federal Rule of Civil Procedure 59(e), which allows a party to move to alter or amend a judgment within twenty-eight days of the judgment's entry. A party may not use a motion for reconsideration to merely r ...
Kalinoski v. Lackawanna County, 2011 U.S. Dist. LEXIS 124249 (M.D.Pa. Oct. 26, 2011): A motion for reconsideration is governed by Federal Rule of Civil Procedure 59(e), which allows a party to move to alter or amend a judgment within twenty-eight…
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Granting Rule 12(f) Motion to Strike a “Drastic Remedy” Disfavored by the Courts

From SAS Institute Inc. v. Akin Gump Strauss Hauer & Feld, LLP, 2011 U.S. Dist. LEXIS 129611 (E.D.N.C. Nov. 9, 2011): Rule 12(f) provides, in pertinent part that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act ... on its own; or . . .on mo ...
From SAS Institute Inc. v. Akin Gump Strauss Hauer & Feld, LLP, 2011 U.S. Dist. LEXIS 129611 (E.D.N.C. Nov. 9, 2011): Rule 12(f) provides, in pertinent part that “[t]he court may strike from a pleading an insufficient defense or any…
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New York Bars Legal Malpractice-Based Claim for Negligent Infliction of Emotional Distress unless Defendant Unreasonably Threatened Plaintiff’s Physical Safety

Morson v. Kreindler & Kreindler, 2011 U.S. Dist. LEXIS 112310 (E.D.N.Y. Sept. 28, 2011): Two of plaintiff's claims, Count V: negligent infliction of emotional distress ("NEID"), and Count VI: intentional infliction of emotional distress ("IIED"), allege injuries that are not purely economic in nature. However, New York does not allo ...
Morson v. Kreindler & Kreindler, 2011 U.S. Dist. LEXIS 112310 (E.D.N.Y. Sept. 28, 2011): Two of plaintiff’s claims, Count V: negligent infliction of emotional distress (“NEID”), and Count VI: intentional infliction of emotional distress (“IIED”), allege injuries that are not…
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In Action Alleging Misrepresentation Concerning Product, Problems and Complaints of Third Parties Prior to Contract of Sale Are Admissible to Show State of Mind of Defendant — High Standard for Success on Motion in Limine to Exclude

From Silicon Knights, Inc. v. Epic Games, Inc., 2011 U.S. Dist. LEXIS 128897 (E.D.N.C. Nov. 8, 2011): SK and Epic are both engaged in the business of developing video games. On May 10, 2005, SK entered into a license agreement to use Epic's video game engine, the Unreal Engine 3 ("UE3"), in SK's development of Too Human, a game SK produ ...
From Silicon Knights, Inc. v. Epic Games, Inc., 2011 U.S. Dist. LEXIS 128897 (E.D.N.C. Nov. 8, 2011): SK and Epic are both engaged in the business of developing video games. On May 10, 2005, SK entered into a license agreement…
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Treating Physician Must Provide 26(a)(2)(B) Expert Report If Opinions Extend Beyond Those Formed during Treatment — Presumptively Mandatory Sanctions — Particularly Broad Discretion as to Type

From Ghiorzi v Whitewater Pools & Spas, Inc., 2011 U.S. Dist. LEXIS 125329 (D. Nev. Oct. 27, 2011): Applying Rule 37(a)(3) and (c)(1) compels the conclusion that an expert's trial testimony should be automatically excluded if a party fails to strictly comply with the requirements of Rule 26(a)(2)(B) unless the court finds that there was ...
From Ghiorzi v Whitewater Pools & Spas, Inc., 2011 U.S. Dist. LEXIS 125329 (D. Nev. Oct. 27, 2011): Applying Rule 37(a)(3) and (c)(1) compels the conclusion that an expert’s trial testimony should be automatically excluded if a party fails to…
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Arbitration — State of Circuit Split as to Whether Hall Street Eliminates Manifest Disregard as a Ground for Vacating Arbitration Award

From Abbott v. Law Office of Patrick J. Mulligan, 2011 U.S. App. LEXIS 19468 (10th Cir. Sept. 21, 2011): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a viable ground on which to overturn an arbitration award. According to the Second, Sixth (in an unpublished decision) and ...
From Abbott v. Law Office of Patrick J. Mulligan, 2011 U.S. App. LEXIS 19468 (10th Cir. Sept. 21, 2011): In the wake of Hall Street, the circuits have split as to whether manifest disregard of the law is still a…
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Breadth of Arbitral Immunity — Trivial Differences between Rule 11 Motion as Served and as Filed Do Not Vitiate It or Require Second Safe Harbor Period — Permitted Inference vs. Unpermitted Speculation

Bletas v. Deluca, 2011 U.S. Dist. LEXIS 133132 (S.D.N.Y. Nov. 14, 2011): Pro se plaintiffs ... (collectively, the "former franchisees") former franchisees of Subway International B.V. ("SIBV") who operated sandwich shops in Greece, and plaintiff [X], a Greek attorney who represented some of the plaintiffs in arbitration proceedings, bri ...
Bletas v. Deluca, 2011 U.S. Dist. LEXIS 133132 (S.D.N.Y. Nov. 14, 2011): Pro se plaintiffs … (collectively, the “former franchisees”) former franchisees of Subway International B.V. (“SIBV”) who operated sandwich shops in Greece, and plaintiff [X], a Greek attorney who…
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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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