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

MBA Student’s Breach of Contract against Duke Fails to State a Claim — Elements of the Contract between a Student and Educational Institution

From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University's Fuqua School of Business ("Duke"), his fellow students in a Duke weekend MBA program, and corporations that employed or allegedly employed those students. ***< ...
From Yurimindi v. Fuqua School of Business, 2011 U.S. App. LEXIS 13482 (3d Cir. July 1, 2011): In his 119-page third amended complaint, Vamsidhar Vurimindi sued Duke University’s Fuqua School of Business (“Duke”), his fellow students in a Duke weekend…
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Self-Authentication of Newspaper and Periodical Articles Published Only on the Internet

Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have ...
Courts recognize that newspaper or other periodical stories posted on websites are self-authenticating under Federal Rule of Evidence 902(6) (Newspapers and Periodicals). See the article Internet and Email Evidence 2011 posted here. Although the cases have not found it…
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RICO — Second Circuit Upholds 1962(a) Claim in Anza, in Which Supreme Court Rejected 1962(c) Claim — 12(c) Motion Should Not Be Granted If Holes in Complaint Can Be Filled By Discovery Already Taken

From Ideal Steel Supply Corp. v. Anza, 2011 U.S. App. LEXIS 13176 (2d Cir. 2011) (2-1 decision): This case returns to us from the United States District Court for the Southern District of New York, Richard M. Berman, Judge, following the entry of a final judgment dismissing the third amended complaint (or "Complaint") of plaintiff Ideal ...
From Ideal Steel Supply Corp. v. Anza, 2011 U.S. App. LEXIS 13176 (2d Cir. 2011) (2-1 decision): This case returns to us from the United States District Court for the Southern District of New York, Richard M. Berman, Judge, following…
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Fact that Wrongful Death Claim Has Been Assigned Is Inadmissible in Utah — Split of Authority on Whether Remarriage of Surviving Spouse Is Admissible

From Petersen v. Daimler Chrysler Corp., 2011 U.S. Dist. LEXIS 66862 (D. Utah June 22, 2011): Under Utah law, an heir is entitled to assign any interest he or she might have in the recovery from a wrongful death action. In re Behm's Estate, 213 P.2d 657, 662 (Utah 1950). In allowing such an assignment, the Utah Supreme Court drew a dist ...
From Petersen v. Daimler Chrysler Corp., 2011 U.S. Dist. LEXIS 66862 (D. Utah June 22, 2011): Under Utah law, an heir is entitled to assign any interest he or she might have in the recovery from a wrongful death action.…
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When an Undecided Attorneys’ Fees Issue Means that Order Deciding Merits Is Not Final for Purposes of Appeal — Finality Implications of Sanctions-Based vs. Contract-Based Fees Award

From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): Under Federal Rule of Appellate Procedure 4(a)(1), DeLauro had 30 days to file a notice of appeal from the final order resolving the matter. See Fed. R. App. P. 4(a)(1); see also 28 U.S.C. §§ 158(d)(1) and 1291 (giving the courts of appeals juris ...
From DeLauro v. Porto (In re Porto), 2011 U.S. App. LEXIS 13941 (11th Cir. July 8, 2011): Under Federal Rule of Appellate Procedure 4(a)(1), DeLauro had 30 days to file a notice of appeal from the final order resolving the…
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Diversity Jurisdiction — Federal Credit Unions Normally Not a Citizen of Any State — Localized Operations Exception

From Mungo v. Minn. Life Ins. Co., 2011 U.S. Dist. LEXIS 67654 (D. S.C. June 22, 2011): As Mungo points out in her brief, Founders recently asserted to this court in a removal notice in an unrelated case that it is a citizen of South Carolina "for purposes of any diversity analysis." *** The citizenship of Founders was not relevant in th ...
From Mungo v. Minn. Life Ins. Co., 2011 U.S. Dist. LEXIS 67654 (D. S.C. June 22, 2011): As Mungo points out in her brief, Founders recently asserted to this court in a removal notice in an unrelated case that it…
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Attachment of Foreign State’s Property under the FSIA — Assets of Central Bank Held at Federal Reserve Bank of New York for Central Bank’s “Own Account” Are Immune from Attachment — Standing of Non-Party to Appeal

From NML Capital, Ltd. v. Banco Central de law Republica Argentina, 2011 U.S. App. LEXIS 13655 (2d Cir. July 5, 2011): The question presented is whether certain assets held in the United States in an account of interested non-party-appellant Banco Central de la República Argentina ("BCRA") at the Federal Reserve Bank of New York ("FRBN ...
From NML Capital, Ltd. v. Banco Central de law Republica Argentina, 2011 U.S. App. LEXIS 13655 (2d Cir. July 5, 2011): The question presented is whether certain assets held in the United States in an account of interested non-party-appellant Banco…
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Six Types of Changed Factual or Legal Circumstances Warranting Relief from a Consent Decree under Rule 60(b)(5)

From In re Consolidated “Non-Filing Ins.” Fee Litig., 2011 U.S. App. LEXIS 13046 (11th Cir. June 22, 2011): [T]he district court applied the test in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and denied the motion to modify the consent decree because Security Finance had not met its burden. Rufo's two prong te ...
From In re Consolidated “Non-Filing Ins.” Fee Litig., 2011 U.S. App. LEXIS 13046 (11th Cir. June 22, 2011): [T]he district court applied the test in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and denied the motion…
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RICO Statute of Limitations Accrues When Plaintiff Had Sufficient Information to Warrant an Investigation (Merck Unmentioned but Irrelevant)

From Daly v. Pearl Spirits, Inc., 2011 U.S. App. LEXIS 12587 (9th Cir. April 13, 2011): "The statute of limitations for civil RICO actions is four years." *** "The limitations period for civil RICO actions begins to run when a plaintiff knows or should know of the injury which is the basis for the action." Living Designs, Inc. v. E.I. D ...
From Daly v. Pearl Spirits, Inc., 2011 U.S. App. LEXIS 12587 (9th Cir. April 13, 2011): “The statute of limitations for civil RICO actions is four years.” *** “The limitations period for civil RICO actions begins to run when a…
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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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