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

Literal Truth No Defense to Rule 11 Sanctions If Misleading — Reliance on Dubious Computerized Data from client’s Third-Party Vendor ≠ Reasonable Inquiry — Reliance on Client: Need Not Assume Duplicity — Uninvolved Senior Partner Not Culpable

From In re Taylor, 2011 U.S. App. LEXIS 17651 (3d Cir. Aug. 24, 2011): This case is an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the part of clients and lawyers alike to take responsibility for accurate knowledge of a case, can lead to attorney misc ...
From In re Taylor, 2011 U.S. App. LEXIS 17651 (3d Cir. Aug. 24, 2011): This case is an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the…
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Amended Complaint that Fundamentally Changes the Shape of a Case Revives Defendant’s Right to Compel Arbitration — Here, Vastly Augmented Class Definition

From Krinsk v. Suntrust Banks, Inc., 2011 U.S. App. LEXIS 18521 (11th Cir. Sept. 7, 2011): Defendant SunTrust Bank ("SunTrust") appeals the district court's order denying its motion to compel plaintiff Sara Krinsk to submit her claims to arbitration pursuant to an arbitration agreement governed by the Federal Arbitration Act ("FAA"), 9 ...
From Krinsk v. Suntrust Banks, Inc., 2011 U.S. App. LEXIS 18521 (11th Cir. Sept. 7, 2011): Defendant SunTrust Bank (“SunTrust”) appeals the district court’s order denying its motion to compel plaintiff Sara Krinsk to submit her claims to arbitration pursuant…
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Responsive Internet Pages that Party Intends to Introduce Must Be Produced in Discovery — No Defense that They Haven’t Been Printed Out — Someone Other Than Trial Counsel Should Authenticate — Non-Hearsay Uses of Internet Evidence

From Firehouse Restaurant Group, Inc. v. Scurmont LLC, 2011 U.S. Dist. LEXIS 89727 (D.S.C. Aug. 11, 2011): I: Internet Printouts of Alleged Third Party Use Firehouse seeks to preclude Calli Baker's from introducing a substantial number of printouts from various Internet websites purporting to identify businesses that use the ter ...
From Firehouse Restaurant Group, Inc. v. Scurmont LLC, 2011 U.S. Dist. LEXIS 89727 (D.S.C. Aug. 11, 2011): I: Internet Printouts of Alleged Third Party Use Firehouse seeks to preclude Calli Baker’s from introducing a substantial number of printouts from various…
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Permissible and Impermissible Supplemental Closing Arguments in Criminal Trial — Distinguishing Coercive from Non-Coercive — Importance of Not Polling Jurors as to Areas of Disagreement

From United States v. Della Porta, 2011 U.S. App. LEXIS 16341 (9th Cir. Aug. 8, 2011): In [United States v. Evanston, No. 10-10159, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1 (9th Cir. July 5, 2011)], we addressed, as a matter of first impression in this circuit, the use of supplemental closing arguments to assist a deadlocked j ...
From United States v. Della Porta, 2011 U.S. App. LEXIS 16341 (9th Cir. Aug. 8, 2011): In [United States v. Evanston, No. 10-10159, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1 (9th Cir. July 5, 2011)], we addressed,…
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Arbitration — Applying Vaden to Look Through a Freestanding FAA Petition Where No Complaint Exists — State Law Discovery Sanction Striking Arbitration Clause Precludes Motion to Compel in Federal Court

From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court's opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2009), and following a detour through our en banc Court. Again we are asked to navigate ...
From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court’s opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S.…
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Disqualification of Opposing Lawyer, Who Was a Key Participant in Failed Contract Negotiations, Denied — No Right to Call Opposing Counsel to Corroborate Own Witnesses’ Testimony

From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff's counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants note that Domina participated in unsuccessful negotiations for an operat ...
From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff’s counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants…
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§ 1292(b) Certification Is Not Appropriate Simply Because the Interlocutory Decision Addresses an Issue of First Impression or Complex, Difficult Statutory Interpretation

From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011): B. Substantial Ground for Difference of Opinion Is Not Present Defendants posit that the language used by the court in its Order is intentionally equivocal in recognition of the fact that certain provisions of the ADAAG [Americans with Disabil ...
From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011): B. Substantial Ground for Difference of Opinion Is Not Present Defendants posit that the language used by the court in its Order is intentionally…
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Sanctions — Order Finding Lawyer Violated Ethical Rule Is Appealable Even Though Unaccompanied by Formal Reprimand or Monetary Penalty

From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge's order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict contact with a juror. *** Appellant Yolanda Adams filed suit in the District Court of t ...
From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge’s order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict…
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Standard for Discovery of Mediation Communications = Standard for Relief from a Protective Order — Note Alternative of Targeted Discovery and Seeming Openness to Interrogatories or Depositions to Obtain Same Evidence

From Savage & Assocs., PC v. K&L Gates LLP, 640 F.3d 53 (2d Cir. 2011): Appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Castel, J.) affirming the order of the bankruptcy court (Bernstein, C.B.J.), which denied K&L Gates LLP's ("K& L Gates") motion to lift two protective ord ...
From Savage & Assocs., PC v. K&L Gates LLP, 640 F.3d 53 (2d Cir. 2011): Appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Castel, J.) affirming the order of…
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Unsolicited Email Received from Someone Whom the Recipient Has Never Been in Contact with Not Sufficiently Authenticated (Linked to Sender) Simply by Recipient’s Testimony

From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): "When a letter, signed with the purported signature of X, is received 'out of the blue,' with no previous correspondence, the traditional 'show me' skepticism of the common law prevails, and the purported signature is not sufficient as authenticatio ...
From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): “When a letter, signed with the purported signature of X, is received ‘out of the blue,’ with no previous correspondence, the traditional ‘show…
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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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