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

Seventh Circuit Rules that a Letter Satisfies the Motion Requirement of Rule 11(c)(1)(A) and that Post-Judgment Motion Is Timely Despite Safe Harbor (Circuit Split)

From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway's argument for sanctions, we address certain concerns raised below and reiterated here that the motion for sanctions was procedurally defective. Rule 11(c)(2) provides that a motion fo ...
From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway’s argument for sanctions, we address certain concerns raised below and…
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Removing Defendant May Be Awarded Fees under § 1447(c) for Frivolous Removal Caused by Plaintiff’s Misconduct

From Micrometl Corp. v. Tranzact Techs., Inc., 2011 U.S. App. LEXIS 17693 (7th Cir. Aug. 24, 2011): After Micrometl Corp. filed suit in state court against Tranzact Technologies, Inc., alleging overbillings in excess of $100,000, Tranzact removed to federal court. The parties are of diverse citizenship, and so jurisdiction appeared secu ...
From Micrometl Corp. v. Tranzact Techs., Inc., 2011 U.S. App. LEXIS 17693 (7th Cir. Aug. 24, 2011): After Micrometl Corp. filed suit in state court against Tranzact Technologies, Inc., alleging overbillings in excess of $100,000, Tranzact removed to federal court.…
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No Rule 11 Sanctions for Cat-and-Mouse Evasion of Service or Failure to File Answer, but Inherent Power Sanctions May Be Warranted

From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to "[r]epresentations to the Court" made in "presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper." Fed R. Civ. P. 11(b) (2006). In Hilton Hotels Corp. v. Banov, 899 F.2d 40, 283 ...
From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to “[r]epresentations to the Court” made in “presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or…
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Counsel’s Orally Reading to SEC Her Notes of Internal Investigation Interviews Waived Work Product Protection Even Though Done Pursuant to Confidentiality Agreement

From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation ("NuHo") moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten notes taken during NuHo's internal investig ...
From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation (“NuHo”) moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten…
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Inherent Power and § 1927 Sanctions Are Punitive as Well as Deterrent and Therefore May Exceed the Amount Required for Deterrence

From Stalley v. Mountain States Health Alliance, 2011 U.S. App. LEXIS 13895 (6th Cir. July 8, 2011) (affirming district court opinion excerpted in our post of February 11, 2010): Stalley contends that the district court did not "explain[] why all of the fees and expenses incurred [by Defendants'] law firm . . . had to be awarded to assu ...
From Stalley v. Mountain States Health Alliance, 2011 U.S. App. LEXIS 13895 (6th Cir. July 8, 2011) (affirming district court opinion excerpted in our post of February 11, 2010): Stalley contends that the district court did not “explain[] why all…
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RICO Pattern — Nine-Month Scheme by Employee Lacks Continuity — Sole Victim Is Company — Harmed ESOP Participants Not Cognizable Victims — Good Quote (Anti-Mail Fraud Predicate)

From Whitney, Bradley & Brown, Inc. v. Kammermann, 2011 U.S. App. LEXIS 12841 (4th Cir. June 23, 2011): WBB is a federal government contractor, headquartered in Reston, Virginia, that facilitates business relationships between private enterprise and the Department of Defense. WBB continuously employed Kammermann as a manager from May 20 ...
From Whitney, Bradley & Brown, Inc. v. Kammermann, 2011 U.S. App. LEXIS 12841 (4th Cir. June 23, 2011): WBB is a federal government contractor, headquartered in Reston, Virginia, that facilitates business relationships between private enterprise and the Department of Defense.…
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Improper to Interrupt Deposition to Confer with Deponent — By Answering Question About Conference, Privilege May Be Waived or Vitiated by Crime-Fraud — “Speculation” Objection = Improper Coaching — In Camera Meeting with Witness

From LM Ins. Corp. v. ACEO, Inc., 2011 U.S. Dist. LEXIS 79192 (N.D. Ill. July 21, 2011): [T]he plaintiff took the deposition of Natalie Finke, an employee of the Defendants. At the deposition, Ms. Finke testified that she thought that "an individual broker" received "return" (i.e., kickback) to which he was not entitled, and she "defini ...
From LM Ins. Corp. v. ACEO, Inc., 2011 U.S. Dist. LEXIS 79192 (N.D. Ill. July 21, 2011): [T]he plaintiff took the deposition of Natalie Finke, an employee of the Defendants. At the deposition, Ms. Finke testified that she thought that…
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RICO Claims Dependent on Allegation that Insurers Charged More than Permitted by State Law Dismissed for Failure to Exhaust Mandatory State Administrative Remedies for Excessive Rate Charges

From Mitchell-Tracey v. United Gen. Title Ins. Co., 2011 U.S. App. LEXIS 15952 (4th Cir. Aug. 2, 2011): Plaintiff-Appellants are Maryland homeowners who purchased title insurance from Defendant-Appellees First American Title Insurance Company and United General Title Insurance Company (collectively, "defendants") when they refinanced th ...
From Mitchell-Tracey v. United Gen. Title Ins. Co., 2011 U.S. App. LEXIS 15952 (4th Cir. Aug. 2, 2011): Plaintiff-Appellants are Maryland homeowners who purchased title insurance from Defendant-Appellees First American Title Insurance Company and United General Title Insurance Company (collectively,…
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Standard of Review of Sanctions under 28 U.S.C. § 1447(c) — Automatic Stay Does Not Preclude Imposition of Sanctions for Frivolous Removal, Post-Petition, of Action Filed Pre-Petition

From Garrett v. Cook, 2011 U.S. App. LEXIS 14403 (10th Cir. July 14, 2011): The district court awarded fees and costs pursuant to 28 U.S.C. § 1447(c), which reads as follows: (c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days afte ...
From Garrett v. Cook, 2011 U.S. App. LEXIS 14403 (10th Cir. July 14, 2011): The district court awarded fees and costs pursuant to 28 U.S.C. § 1447(c), which reads as follows: (c) A motion to remand the case on 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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