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

Rule 11 (or 9011) Sanctions — Misstatements or Omissions of “Litigation Facts” — Limits on Duty to Investigate

From In re Brent, 2011 Bankr. LEXIS 3668 (Bankr. N.D. Ill. Sept. 29, 2011): Timothy K. Liou is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid-1996 to the present. More than once, though, Liou's efforts to get paid have drawn the court's attention and resulted in sanctions. Now he f ...
From In re Brent, 2011 Bankr. LEXIS 3668 (Bankr. N.D. Ill. Sept. 29, 2011): Timothy K. Liou is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid-1996 to the present. More than…
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Arbitration — Circuit Split as to Whether Party Asserting Waiver of Right to Arbitrate Must Show Prejudice

From Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115 (8th Cir. 2011): [A]rty may waive its contractual right to arbitrate. See Lewallen, 487 F.3d at 1090. Although the issue of waiver arises under a variety of arbitration agreements and in a variety of procedural settings, we apply a uniform three-factor test in determi ...
From Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115 (8th Cir. 2011): [A]rty may waive its contractual right to arbitrate. See Lewallen, 487 F.3d at 1090. Although the issue of waiver arises under a variety of arbitration…
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Primary Jurisdiction — Factors — Stay vs. Dismissal of Federal Action Pending Agency Action — Duration

From All One God Faith, Inc. v. Hain Celestial Group, Inc., 2011 U.S. Dist. LEXIS 108269 (N.D. Cal. Sept. 20, 2011): A. Primary Jurisdiction Doctrine The primary jurisdiction doctrine allows the Court, "under appropriate circumstances, [to] determine that the initial decisionmaking responsibility should be performed by the relev ...
From All One God Faith, Inc. v. Hain Celestial Group, Inc., 2011 U.S. Dist. LEXIS 108269 (N.D. Cal. Sept. 20, 2011): A. Primary Jurisdiction Doctrine The primary jurisdiction doctrine allows the Court, “under appropriate circumstances, [to] determine that the initial…
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Rule 701 vs. 702 — Lay vs. Expert Opinion — Accountant’s Testimony as to Lost Profits of Client = Lay Opinion — Valuation Distinguished — Business vs. Land Value

Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. Oct. 25, 2011): Defendant[’s] next argument is that several of Plaintiff's witnesses should not have been allowed to testify because their testimony was not lay opinion but expert testimony. Defendant first raised the issue in its motion in ...
Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. Oct. 25, 2011): Defendant[’s] next argument is that several of Plaintiff’s witnesses should not have been allowed to testify because their testimony was…
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Writ of Mandamus vs. Writ of Prohibition — Advisory vs. Supervisory Mandamus and, Presumably, Prohibition

From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or "prerogative") writs where "necessary or appropriate in aid of their respective jurisdictions." Writs of mandamus instruct lower courts to take certain specifie ...
From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or “prerogative”) writs where “necessary or appropriate in aid of their…
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Plaintiff Who Voluntarily Dismisses Action under Rule 41(a)(1)(A) May Have No Right to Relief under 60(b) — Tactical Decision Based on Misinterpretation of Rules Is Not Inadvertent or Type of Mistake 60(b) Addresses

From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011): Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs who complained about discriminatory practices. Approximately two years after fil ...
From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011): Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs…
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No Federal Subject Matter Jurisdiction Exists over Declaratory Judgment Brought by One Private Party against Another That Stands in the Shoes of a Public Official

Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel ("Avgas") to air carriers and other aircraft operators at airports across California and the rest of the United States. On June 30, 2 ...
Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel (“Avgas”) to air carriers and other aircraft operators at airports…
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Court Generally Should Stay Action on Granting Motion to Compel Arbitration, Not Dismiss It — Judicially-Created Exception If Arbitration Will Clearly Resolve All Issues

From Green v. SuperShuttle Int’l, Inc., 2011 WL 3890326 (8th Cir. Sept. 6, 2011): Mack Green and other current or former shuttle bus drivers at the Minneapolis–St. Paul International Airport (collectively Green) brought suit against SuperShuttle International, Inc., SuperShuttle Franchise Corporation, and SuperShuttle of Minnesota, ...
From Green v. SuperShuttle Int’l, Inc., 2011 WL 3890326 (8th Cir. Sept. 6, 2011): Mack Green and other current or former shuttle bus drivers at the Minneapolis–St. Paul International Airport (collectively Green) brought suit against SuperShuttle International, Inc., SuperShuttle Franchise…
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No Sanctions for Litigant’s False Sworn Statement of Fact Resulting from Mistake, Not Bad Faith

From McCreary v. Wertanen, 2010 U.S. App. LEXIS 27404 (6th Cir. Dec. 8, 2010): McCreary brought his complaint asserting violations of his constitutional rights against various employees of the Baraga Maximum Correctional Facility, Michigan Attorney General Mike Cox, and Baraga County Prosecutor Joseph O'Leary. Pursuant to Federal Rule o ...
From McCreary v. Wertanen, 2010 U.S. App. LEXIS 27404 (6th Cir. Dec. 8, 2010): McCreary brought his complaint asserting violations of his constitutional rights against various employees of the Baraga Maximum Correctional Facility, Michigan Attorney General Mike Cox, and Baraga…
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Textual Structure, Legislative History and the Absurdity Doctrine in Statutory Interpretation

Hall v. United States, 99 Fed. Cl. 223,2011 U.S. Claims LEXIS 1151 (Ct. Cl. June 21, 2011): Although statutory interpretation begins with the "plain text," a court turns to "the traditional tools of statutory construction, e.g., legislative history," if the intent and meaning of a statute are not clear from its plain text. Grapevine Imp ...
Hall v. United States, 99 Fed. Cl. 223,2011 U.S. Claims LEXIS 1151 (Ct. Cl. June 21, 2011): Although statutory interpretation begins with the “plain text,” a court turns to “the traditional tools of statutory construction, e.g., legislative history,” if the…
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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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