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

Daubert and Class Certification — Impact of Supreme Court’s Wal-Mart Dicta

From In re Taco Bell Wage & Hour Actions, 2011 U.S. Dist. LEXIS 109169 (E.D. Cal. Sept. 26, 2011): The Supreme Court recently suggested in dicta that Daubert should be applied to expert testimony at the class certification stage. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-2554 (2011) ("The District Court concluded that Da ...
From In re Taco Bell Wage & Hour Actions, 2011 U.S. Dist. LEXIS 109169 (E.D. Cal. Sept. 26, 2011): The Supreme Court recently suggested in dicta that Daubert should be applied to expert testimony at the class certification stage. See…
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Forum Non Conveniens: Where Derivative Action Involves Few Shareholders of Non-U.S. Corporation, Less Deference Due Plaintiffs’ Choice of Forum — Need to Apply New Corporation Law of Foreign Country Augurs in Favor of Dismissal

From In re BP Shareholder Deriv. Litig., 2011 U.S. Dist. LEXIS 104817 (S.D. Tex. Sept. 15, 2011): Defendants argue that the need to apply this recently enacted U.K. statute, which substantively alters directors' duties, weighs strongly in favor of proceeding with the case in England. Indeed, they argue, litigating this case before the En ...
From In re BP Shareholder Deriv. Litig., 2011 U.S. Dist. LEXIS 104817 (S.D. Tex. Sept. 15, 2011): Defendants argue that the need to apply this recently enacted U.K. statute, which substantively alters directors’ duties, weighs strongly in favor of proceeding…
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Personal Jurisdiction under RICO — Agency, “Transacts His Affairs,” Conspiracy

From Pincione v. D’Alfonso, 2011 U.S. Dist. LEXIS 103944 (S.D.N.Y. Sept. 13, 2011): II. Personal Jurisdiction Under the Federal RICO Statute RICO provides that "[a]ny civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such per ...
From Pincione v. D’Alfonso, 2011 U.S. Dist. LEXIS 103944 (S.D.N.Y. Sept. 13, 2011): II. Personal Jurisdiction Under the Federal RICO Statute RICO provides that “[a]ny civil action or proceeding under this chapter against any person may be instituted in the…
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Rule 11 Award for Conduct Unmentioned in Motion Unsustainable — Plain Error Review Where Ground for Reversal Not Raised in District Court

From Indah v. U.S. Securities and Exchange Commission, 2011 U.S. App. LEXIS 18486 (6th Cir. Sept. 6, 2011): The plaintiffs in this case believe that they have an ownership interest in several mines in Indonesia. In pursuit of these interests, they have filed several lawsuits against the Newmont Mining Corporation ("Newmont") and othe ...
From Indah v. U.S. Securities and Exchange Commission, 2011 U.S. App. LEXIS 18486 (6th Cir. Sept. 6, 2011): The plaintiffs in this case believe that they have an ownership interest in several mines in Indonesia. In pursuit of these interests,…
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Abuse of Discretion to Impose Sanctions for Unsupported Allegations That Were Not Filed in Bad Faith and Were Voluntarily Withdrawn, Albeit Not within 21-Day Safe Harbor Period

From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court's sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that (1) the Meserole plaintiffs' counsel did not have evidentiary support for certain of the assertions in the sec ...
From In re Sony Corp. SXRD, 2011 U.S. App. LEXIS 19550 (2d Cir. Sept. 23, 2011): We vacate the district court’s sanctions order. We understand why the district court felt the need to impose sanctions; we agree, for example, that…
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When There Is a Change in Law after Motion Decided But before Trial and Judgment, a Party That Does Not Seek Reconsideration Waives Arguments on Appeal Based on That Change in Law

From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas's RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the defendants' misrepresentations. The parties agree that in doing so the court correctly applied the ...
From Douglas Asphalt Co. v. QORE, Inc., 2011 U.S. App. LEXIS 19266 (11th Cir. Sept. 20, 2011): The district court dismissed Douglas’s RICO claims predicated on mail and wire fraud because Douglas had not pleaded that it relied on the…
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New Arguments Raised for the First Time in Reply Brief Are Untimely and Disregarded

From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d 454, 481 (6th Cir. 2003) (new arguments in a reply brief vitiate a nonmovant's ability t ...
From EP Acquisition Corp. v. Maxxtrade, Inc., 2011 U.S. Dist. LEXIS 103715 (E.D. Ky. Sept. 14, 2011): The Sixth Circuit has consistently condemned arguments raised for the first time in reply briefs. See Seay v. Tennessee Valley Authority, 339 F.3d…
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Authentication of Text Messages, Including Transcriptions of Texts

From Commonwealth v. Koch, 2011 PA Super 201, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Sept. 16, 2011): The question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania. Text messages are defined as "writings or other data transmitted electronically by cellular telephones" that co ...
From Commonwealth v. Koch, 2011 PA Super 201, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Sept. 16, 2011): The question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania. Text…
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Non-Specific JMOL Motion Waives Unspecified Arguments — Third Circuit Does Not Reach Viability of Intracorporate Conspiracy Doctrine under RICO — Joint and Several RICO Liability

From State Farm Mut. Auto. Ins. Co. v. Lincow, 2011 U.S. App. LEXIS 19185 (3d Cir. Sept. 16, 2011): Mintz first contends that the District Court erroneously held that he waived or abandoned his request for judgment as a matter of law on all issues. Regarding the other issues aside from RICO distinctiveness, the District Court correct ...
From State Farm Mut. Auto. Ins. Co. v. Lincow, 2011 U.S. App. LEXIS 19185 (3d Cir. Sept. 16, 2011): Mintz first contends that the District Court erroneously held that he waived or abandoned his request for judgment as a matter…
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Advocate-Witness Rule Disqualification Due to Involvement in Underlying Events — Factors

From Beechwoods Restorative Care Center v. Leeds, 2011 U.S. Dist. LEXIS 102145 (W.D.N.Y. Sept. 12, 2011): Defendants also move to disqualify one of plaintiffs' attorneys, Kevin Cooman, Esq., from acting as trial counsel in this case. Defendants contend that because Cooman was involved in some of the events giving rise to this case,
From Beechwoods Restorative Care Center v. Leeds, 2011 U.S. Dist. LEXIS 102145 (W.D.N.Y. Sept. 12, 2011): Defendants also move to disqualify one of plaintiffs’ attorneys, Kevin Cooman, Esq., from acting as trial counsel in this case. Defendants contend that because…
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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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