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

Generally No Hearsay — as Opposed to Authentication — Problem Associated with Images Posted on Internet

From United States v. Cameron, 2011 U.S. Dist. LEXIS 4721 (D. Me. Jan. 18, 2011): [T]he images [found on the ISP server] are not hearsay to begin with.... The rule against the admission of hearsay applies to only to statements offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c); Fed. R. Evid. 802. A “statement” i ...
From United States v. Cameron, 2011 U.S. Dist. LEXIS 4721 (D. Me. Jan. 18, 2011): [T]he images [found on the ISP server] are not hearsay to begin with…. The rule against the admission of hearsay applies to only to statements…
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Standards for Disqualification of Opposing Counsel Who Served as Mediator in Earlier Dispute between Parties

From Hossaini v. Vaelizadeh, 2011 U.S. Dist. LEXIS 86436 (D. Neb. Aug. 4, 2011): Relatively few courts have considered the disqualification of an attorney who has previously served as a mediator for a dispute between the parties. The most thorough discussion comes in the case of Poly Software International, Inc. v. Datamost Corpora ...
From Hossaini v. Vaelizadeh, 2011 U.S. Dist. LEXIS 86436 (D. Neb. Aug. 4, 2011): Relatively few courts have considered the disqualification of an attorney who has previously served as a mediator for a dispute between the parties. The most thorough…
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Arbitration — Determining the Amount in Controversy for Purposes of Confirming an Award — Amount Claimed vs. Amount Awarded

From Smith v. Tele-Town Hall, LLC, 2011 U.S. Dist. LEXIS 76669 (E.D. Va. July 15, 2011): This case presents the question, unresolved in this circuit, whether the jurisdictionally required amount in controversy with respect to a motion to confirm an arbitration award should be based solely on the original amount claimed in the arbitration ...
From Smith v. Tele-Town Hall, LLC, 2011 U.S. Dist. LEXIS 76669 (E.D. Va. July 15, 2011): This case presents the question, unresolved in this circuit, whether the jurisdictionally required amount in controversy with respect to a motion to confirm an…
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Mutual Company, Not Just Its Directors, Owes a Fiduciary Duty to Its Members — Case Law Split (Cases Collected)

From Ormond v. Anthem Ins. Cos., 2011 U.S. Dist. LEXIS 71152 (S.D. Ind. July 1, 2011): Plaintiffs contend that Anthem owed its members a fiduciary duty to reasonably protect their interests and to refrain from gross negligence or wilful conduct that would diminish those interests. According to Plaintiffs, pricing the IPO at $36.00 per s ...
From Ormond v. Anthem Ins. Cos., 2011 U.S. Dist. LEXIS 71152 (S.D. Ind. July 1, 2011): Plaintiffs contend that Anthem owed its members a fiduciary duty to reasonably protect their interests and to refrain from gross negligence or wilful conduct…
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No Waiver of Privilege from Presence of Parents and Neighbor at Conversation with Counsel

From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff contends that [her attorney] Murphy cannot testify as to her conversations with Plaintiff, because any conversations between Plaintiff and her criminal defense attorney are privileged pursuant to Fed. R. ...
From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer): Plaintiff contends that [her attorney] Murphy cannot testify as to her conversations with Plaintiff, because any conversations between Plaintiff…
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Rule 37(b) Default Upheld for Disregard of Oral Discovery Order Not Noticed, Opposed or Formally Heard — Five-Factor Ninth Circuit Test for Default Sanction — Second Judge on Case May Reconsider Orders of First — 16(f) Sanctions — Good Quotes

From Dreith v. Nu Image, Inc., 2011 U.S. App. LEXIS 14686 (9th Cir. July 19, 2011): The Defendants below, Appellants here, engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default against them. *** The district court possessed the power to impose default as a sanctio ...
From Dreith v. Nu Image, Inc., 2011 U.S. App. LEXIS 14686 (9th Cir. July 19, 2011): The Defendants below, Appellants here, engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default…
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Privilege and Work Product Protection for Internal Investigations — Waiver Issues — Self-Interest and Common Interest Defenses to Defamation

From Gruss v. Zirin, 2011 U.S. Dist. LEXIS 79298 (S.D.N.Y. July 14, 2011): Plaintiff Perry A. Gruss filed the complaint in this action on July 20, 2009, asserting claims for defamation and breach of contract by the defendants, D.B. Zwirn & Co., L.P., and D.B. Zwirn Partners, LLC (collectively, the "Zwirn Entities"), two companies contro ...
From Gruss v. Zirin, 2011 U.S. Dist. LEXIS 79298 (S.D.N.Y. July 14, 2011): Plaintiff Perry A. Gruss filed the complaint in this action on July 20, 2009, asserting claims for defamation and breach of contract by the defendants, D.B. Zwirn…
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Court Retains CAFA Jurisdiction over All Claims after Denying Class Certification and Even after Severance Produces Multiple New Cases over Which No Independent Jurisdiction Exists

From Helm v. Alderwoods Grp., Inc., 2011 U.S. Dist. LEXIS 77370 (N.D. Cal. July 18, 2011): The subject of this litigation is a wage and hour dispute brought by current and former employees of Alderwoods Group, Inc. ("Alderwoods"), a provider of funerary services.*** On February 27, 2008, defendants removed the action to federal court, i ...
From Helm v. Alderwoods Grp., Inc., 2011 U.S. Dist. LEXIS 77370 (N.D. Cal. July 18, 2011): The subject of this litigation is a wage and hour dispute brought by current and former employees of Alderwoods Group, Inc. (“Alderwoods”), a provider…
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National Security Council and Others Who Advise the President Are Not Subject to FOIA — Test for Determining Exempt Status — When Equitable Estoppel May be Asserted against the Federal Government

From Electronic Privacy Information Center v. National Security Agency, 2011 U.S. Dist. LEXIS 72751 (D.D.C. July 7, 2011): The text of FOIA makes clear that the statute applies to "agenc[ies]" only. See 5 U.S.C. § 552(a) ("Each agency shall make available to the public information as follows..."). The statutory definition of an "agency ...
From Electronic Privacy Information Center v. National Security Agency, 2011 U.S. Dist. LEXIS 72751 (D.D.C. July 7, 2011): The text of FOIA makes clear that the statute applies to “agenc[ies]” only. See 5 U.S.C. § 552(a) (“Each agency shall make…
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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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