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

Judicial Recusal Requires Bias from Extrajudicial Source — Rulings in Prior Cases Almost Never Sufficient — Judge Subject to Recusal If Objective Observer Would Doubt Impartiality

From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011) (affirming contempt sanction issued under inherent power): O'Dwyer argues that Judge Lemelle should have recused himself from sitting in this case because of his personal bias against O'Dwyer. We review a denial of a motion to recuse un ...
From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011) (affirming contempt sanction issued under inherent power): O’Dwyer argues that Judge Lemelle should have recused himself from sitting in this case because of…
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No Right to Attorneys’ Fees on Appeal for Defending Sanctions Award, Absent Sanctionable Conduct on Appeal — Appellate Fees Not “Caused” by Sanctionable Conduct Below — Sources of Bankruptcy Court Sanctions Power

From Franken v. Mukamal (In re Creative Desperation Inc.), 2011 U.S. App. LEXIS 20306 (11th Cir. Oct. 5, 2011): Section 105 of Tile 11 of the United States Code imbues bankruptcy courts with the same inherent powers as federal district courts to sanction abusive conduct. In re Porto, 645 F.3d 1294, 1304 n.6 (11th Cir. 2011). T ...
From Franken v. Mukamal (In re Creative Desperation Inc.), 2011 U.S. App. LEXIS 20306 (11th Cir. Oct. 5, 2011): Section 105 of Tile 11 of the United States Code imbues bankruptcy courts with the same inherent powers as federal district…
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Payments Received by Qui Tam Relator Are Includable in Gross Income

From Campbell v. Commissioner of Internal Revenue, 2011 U.S. App. LEXIS 19745 (11th Cir. Sept. 28, 2011): Section 61(a) of the Internal Revenue Code defines gross income as "all income from whatever source derived." I.R.C. § 61(a). There is no exclusion enumerated in the Code for qui tam awards. See Treas. Reg. § 1.61-1(a). "The taxp ...
From Campbell v. Commissioner of Internal Revenue, 2011 U.S. App. LEXIS 19745 (11th Cir. Sept. 28, 2011): Section 61(a) of the Internal Revenue Code defines gross income as “all income from whatever source derived.” I.R.C. § 61(a). There is no…
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Unintelligibility Is a Legitimate Ground to Reject a Proposed Amended Complaint (and, Presumably, the Original) — Rule 8(a) — Good Quotes

From Standard v. Nygren, 2011 U.S. App. LEXIS 19213 (7th Cir. Sept. 19, 2011): Michael Stanard built an outdoor stage on his property in rural McHenry County, Illinois, and began hosting events there. He claims that Keith Nygren, the Sheriff of McHenry County, forced him to hire off-duty deputies as a private security force for these e ...
From Standard v. Nygren, 2011 U.S. App. LEXIS 19213 (7th Cir. Sept. 19, 2011): Michael Stanard built an outdoor stage on his property in rural McHenry County, Illinois, and began hosting events there. He claims that Keith Nygren, the Sheriff…
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Settlement Negotiations and Accompanying Correspondence Insufficient to Create Contacts Warranting Exercise of Personal Jurisdiction (Specific Jurisdiction)

From Ramparts, Inc. v. Weldon, 2011 U.S. Dist. LEXIS 111123 (D. Nev. Sept. 28, 2011): Although it is an issue of first impression in Nevada, other jurisdictions have held that settlement negotiations and accompanying correspondence do not suffice to create sufficient contact for the exercise of personal jurisdiction. In re Ship ...
From Ramparts, Inc. v. Weldon, 2011 U.S. Dist. LEXIS 111123 (D. Nev. Sept. 28, 2011): Although it is an issue of first impression in Nevada, other jurisdictions have held that settlement negotiations and accompanying correspondence do not suffice to create…
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All Parties Named in Complaint Must Sign Stipulation of Dismissal to Terminate Action, Even Parties No Longer in the Case

From Wilson v. Taser Int’l, Inc., 2011 U.S. Dist. LEXIS 99135 (D. Colo. Sept. 2, 2011): This matter comes before the Court on the stipulation of dismissal with prejudice [Docket No. 377] filed by plaintiffs and defendant Taser International, Inc. ("Taser") on August 2, 2011. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), ...
From Wilson v. Taser Int’l, Inc., 2011 U.S. Dist. LEXIS 99135 (D. Colo. Sept. 2, 2011): This matter comes before the Court on the stipulation of dismissal with prejudice [Docket No. 377] filed by plaintiffs and defendant Taser International, Inc.…
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False Statements Confirming Misinformation Already in Market Are Actionable under 10b-5 — Circuit Split

Findwhat Investor Group v. Findwhat.com, 2011 U.S. App. LEXIS 19887 (11th Cir. Sept. 30, 2011): In opposing summary judgment, the Plaintiffs relied on the expert report of Dr. Hakala as evidentiary support for both loss causation and damages. The Defendants expressly assumed the admissibility of Dr. Hakala's report for purposes of their ...
Findwhat Investor Group v. Findwhat.com, 2011 U.S. App. LEXIS 19887 (11th Cir. Sept. 30, 2011): In opposing summary judgment, the Plaintiffs relied on the expert report of Dr. Hakala as evidentiary support for both loss causation and damages. The Defendants…
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Failure to Move to Vacate, Modify or Correct Arbitration Award within 90 Days of Receipt Mandates Confirmation under FAA

From Desousa v. Jabiru USA Sport Aircraft, LLC, 2011 U.S. Dist. LEXIS 101046 (E.D. Tenn. Sept. 6, 2011): Before the Court is Plaintiffs Motion for "Relief from Final Order, Reconsider, Vacate Award/Judgement & Reopen Case" ("Motion to Vacate Award") [Court Doc. 19], filed November 17, 2010. *** After Defendants applied to thi ...
From Desousa v. Jabiru USA Sport Aircraft, LLC, 2011 U.S. Dist. LEXIS 101046 (E.D. Tenn. Sept. 6, 2011): Before the Court is Plaintiffs Motion for “Relief from Final Order, Reconsider, Vacate Award/Judgement & Reopen Case” (“Motion to Vacate Award”) [Court…
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RICO — Outsiders Deemed to Operate and Manage Insurance Company by Filing False Claims Even Though No Insiders Involved

Puerto Rico Am. Ins. Co. v. Burgos, 2011 U.S. Dist. LEXIS 112378 (D. P.R. Sept. 30, 2011): This protracted litigation dates back to 2001, when several insurance companies initiated a massive civil action against multiple defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"),18 U.S.C. §§ 1961-1969. Since 2001, ...
Puerto Rico Am. Ins. Co. v. Burgos, 2011 U.S. Dist. LEXIS 112378 (D. P.R. Sept. 30, 2011): This protracted litigation dates back to 2001, when several insurance companies initiated a massive civil action against multiple defendants under the Racketeer Influenced…
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Experts — Good Quotes

From Citizens Prop. Ins. Corp. v. Simkar LLC, 2011 U.S. Dist. LEXIS 109208 (M.D. Fla. Sept. 26, 2011): Importantly, although rulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology, it is not the district court's role to make ultimate conclusions ...
From Citizens Prop. Ins. Corp. v. Simkar LLC, 2011 U.S. Dist. LEXIS 109208 (M.D. Fla. Sept. 26, 2011): Importantly, although rulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert’s methodology,…
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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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