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

Class Actions: Supreme Court Strictly Defines Commonality under Rule 23(a) — Merits Rightly Considered on Certification — Daubert Alm ost Certainly Applies at Certification Stage

From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that "there are questions of law or fact common to the class." Rule 23(a)(2). Footnote 5. We have previously stated in this context that "[t]he commonality ...
From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.”…
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Sixth Circuit Agrees with D.C. and Not First that Disclosure of Privileged Matter to Client’s Accountant Does Not Effect Waiver — Fact Lawyer Has Conflict Does Not Affect Client’s Right to Assert Privilege

From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App'x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. § 6662(h). New Phoenix seeks to avoid this penalty by invoking the reasonabl ...
From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App’x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. §…
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Weighing Work Product Claims by Insurance Companies — No Bright Line Test

From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, "the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product immunity." Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., Inc, 967 F.2d 980, 984 ...
From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, “the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product…
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Authentication of Internet Archive Evidence Requires Affidavit from Knowledgeable Employee of Archive

From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive's Wayback Machine. *** According to Google, Plaintiffs produced these screen shots at the close of discovery***. It alleges that the lat ...
From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010): Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive’s Wayback Machine. *** According to Google, Plaintiffs…
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Court Has Discretion to Decline Relief under Declaratory Act But Not to Decline Relief under Federal Arbitration Act (Here, by Remanding First pursuant to DJ Act)

From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company ("MGIC") appeals the district court's decision to remand this suit back to state court pursuant to its discretion under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-220 ...
From Countrywide Home Loans, Inc. v. Mortgage Guaranty Ins. Corp., 2011 U.S. App. LEXIS 12066 (9th Cir. June 15, 2011): Appellant Mortgage Guaranty Insurance Company (“MGIC”) appeals the district court’s decision to remand this suit back to state court pursuant…
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Sanctions Not Appropriate for Presenting Issues of First Impression — Litigants Should Not Be Deterred from Advancing Any Supportable Position (Good Quotes)

From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or that it has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Mid-Continent's ...
From Mid-Continent Cas. Co. v. Eland Energy, Inc., 2011 U.S. Dist. LEXIS 63493 (N.D. Tex. June 14, 2011): Mid-Continent has failed to demonstrate that Sundown has practiced a fraud upon this court or defiled the very temple of justice, or…
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Sanctions — Bad Faith of Client Cannot be Imputed to Lawyer Who Is Merely Negligent — Notable Quotes

From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App'x 107 (9th Cir. 20100: In this case, some of Appellants' actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and inquired into the estate's assets before agreeing to represent Aston-Nevada in bankr ...
From Harris v. U.S. Trustee (In re Aston-Nevada LP), 409 F. App’x 107 (9th Cir. 20100: In this case, some of Appellants’ actions, viewed objectively, were negligent. As the bankruptcy court found, Chapman should have reviewed the bankruptcy petition and…
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Court Papers Filed Manually — Including on Disk — Must Bear Actual Signature and Do Not Satisfy Rule 11(a) If They Bear Only the “/s/” Typed Signature Permitted on Electronically-Filed Documents

From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does not directly define what is meant by "signing" a pleading, motion, or paper. Fed.R.Civ.P. 5(d)(3) provides that a cour ...
From Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2011 U.S. Dist. LEXIS 61856 (S.D. Ohio June 8, 2011): This order is being issued to address a problem with the way in which Doc. #81 has been signed.***Rule 11 does…
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Information-and-Belief Allegations of Meetings that Experts Say Must Have Occurred between Banks and Madoff Are Speculative, Insufficient to Show Actual Knowledge of Fraud — Banks Generally Owe No Duty to Protect Non-Customers from Fraud by Customers

From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show "breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages." SCS Commc'ns, Inc. ...
From MLSMK Inv. Co. v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 11425 (2d Cir. June 6, 2011): To state a claim for aiding and abetting breach of fiduciary duty under New York law, a plaintiff must show…
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In Action Substantively Governed by State Law, Waiver of Privilege Is Determined by State Law, But Waiver of Work Product Protection Is Governed by Federal Law — Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Waived

From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998). Note: This ...
From SEC v. McNaul, 2011 U.S. Dist. LEXIS 62932 (D. Kan. June 14, 2011): Waiver of attorney-client privilege is governed by state law, while waiver of the work product protection is governed by federal law. Frontier Refining, Inc. v. Gorman-Rupp…
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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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