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

Five-Factor Test for Determining Whether to Grant an Extension of a Discovery Period Set Forth in a Scheduling Order

From Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011): Federal Rule of Civil Procedure 16(b)(4) provides that "[a] schedule may be modified only for good cause and with the judge's consent." In reviewing a district court's denial of additional time for discovery, courts consider five factors: "(1) when the moving party learne ...
From Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011): Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” In reviewing a district court’s denial of…
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Sanctions — Sua (Nostra) Sponte Order to Show Cause for Vexatious and Frivolous Appeal Contemplates Joint and Several Liability on Client and Counsel, Leaving It to Them to Sort Out

From Gallop v. Cheney, 2011 U.S. App. LEXIS 8554 (2d Cir. April 27, 2011): [W]hile the government has not moved for sanctions, the record on appeal leaves no doubt that this appeal, to say nothing of the original complaint, was "brought without the slightest chance of success," and therefore should not have been brought at all, even if ...
From Gallop v. Cheney, 2011 U.S. App. LEXIS 8554 (2d Cir. April 27, 2011): [W]hile the government has not moved for sanctions, the record on appeal leaves no doubt that this appeal, to say nothing of the original complaint, was…
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Sequence of Decisionmaking — Decision on Statutory Removal May Precede Resolution of Motions to Dismiss for Lack of Subject Matter or Personal Jurisdiction

From Red Cloud Assets, LLC v. Harris Aviation, LLC, 2011 U.S. Dist. LEXIS 52284 (W.D. Okla. May 16, 2011): Priority of the Parties' Motions Each side urges the Court to take up its Motion first. The removing defendants contend the issue of personal jurisdiction is easily resolved and should result in their prompt dismis ...
From Red Cloud Assets, LLC v. Harris Aviation, LLC, 2011 U.S. Dist. LEXIS 52284 (W.D. Okla. May 16, 2011): Priority of the Parties’ Motions Each side urges the Court to take up its Motion first. The removing defendants contend the…
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Unserved Forum Defendant (Lone Defendant in Case) May Not Remove — Case Law Split — Out-of-State Co-Defendant May Remove While Forum Defendant Unserved — “Absurd Results” Rule of Statutory Construction

From Hawkins v. Cottrell, Inc., 2011 U.S. Dist. LEXIS 54141 (N.D. Ga. May 19, 2011): On December 14, 2010, defendant filed a notice of removal in this court seeking to remove the action based on diversity of citizenship. At the time of removal, defendant had not yet been served in the state action. Plaintiffs are both Tennesse ...
From Hawkins v. Cottrell, Inc., 2011 U.S. Dist. LEXIS 54141 (N.D. Ga. May 19, 2011): On December 14, 2010, defendant filed a notice of removal in this court seeking to remove the action based on diversity of citizenship. At the…
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Issues Inadequately Briefed on Appeal Are Deemed Waived

From Real Estate Innovations, Inc. v. Houston Ass’n of Realtors, Inc., 2011 U.S. App. LEXIS 7882 (5th Cir. April 15, 2011): There *** are a number of issues mentioned in REI's brief in too cursory a fashion for us to consider. Federal Rule of Appellate Procedure 28 requires that an appellant's brief "contain . . . [the] appellant's c ...
From Real Estate Innovations, Inc. v. Houston Ass’n of Realtors, Inc., 2011 U.S. App. LEXIS 7882 (5th Cir. April 15, 2011): There *** are a number of issues mentioned in REI’s brief in too cursory a fashion for us to…
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Rule 54(b) — Factors for Determining Appropriateness of Entering Partial Judgment Pursuant to Rule 54(b)

From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims so long as there is "no just reason for delay," Fed. R. Civ. P. 54(b); (aa) Deciding whether to ...
From Paetec Commc’ns, Inc. v. MCI Commc’ns Servs., Inc., 2011 U.S. Dist. LEXIS 56252 (E.D. Pa. May 9, 2011): Under Rule 54(b), where a suit involves multiple claims, a district court may enter final judgment on a subset of claims…
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Eleventh-Hour Contact of Deponent to Delay Deposition = $102,000 Inherent Power Sanction — Recidivism Relevant in Assessing Propriety of Sanctions

From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant's counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A magistrate judge found that [defense counsel] manipulated late-hour events to avoid the ...
From E. & J. Gallo Winery, 2011 U.S. App. LEXIS 8844 (9th Cir. April 29, 2011): Defendant’s counsel *** after numerous discovery violations, directly contacted counsel for a key third-party witness in a successful attempt to delay a deposition. A…
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Failure to Attach Required State Court Papers to Notice of Removal = De Minimis Procedural Defect Not Requiring Remand — Case Law Split

From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange ("Farmers Insurance") and Mid-Century Insurance Company ("Mid-Century Insurance") removed a putative class action from state court to federal district court. Upon motion of Plaintiff-Appellee, Lawre ...
From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011): Defendants-Appellants Farmers Insurance Exchange (“Farmers Insurance”) and Mid-Century Insurance Company (“Mid-Century Insurance”) removed a putative class action from state court to federal district court.…
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RICO — Fourth Circuit Indicates Acceptance of, While Reserving on, Separate Accrual Test — Look-Back Beyond 4 Years for Predicate Acts to Show Pattern Doesn’t Mean Damages Are Awardable for Out-of-Time Acts

From CSX Transportation, Inc. v. Gilkison, 406 F. App'x 723 (4th Cir. 2010): CSX Transportation, Incorporated ("CSX") filed a complaint against Robert V. Gilkison ("Gilkison"), Peirce, Raimond & Coulter, P.C. ("Peirce firm"), Robert N. Peirce, Jr. ("Peirce"), Louis A. Raimond ("Raimond"), Mark T. Coulter ("Coulter"), and Ray Harron, M. ...
From CSX Transportation, Inc. v. Gilkison, 406 F. App’x 723 (4th Cir. 2010): CSX Transportation, Incorporated (“CSX”) filed a complaint against Robert V. Gilkison (“Gilkison”), Peirce, Raimond & Coulter, P.C. (“Peirce firm”), Robert N. Peirce, Jr. (“Peirce”), Louis A. Raimond…
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A Refreshing Pox-on-Both-Your-Houses Approach to Sanctions (Seventh Circuit) — Good Quote

From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that "the shotgun inclusion of issues . . . runs the risk of obscuring the significant issues by dilution"). In the distri ...
From Moore v. Vital Prods., Inc., 2011 U.S. App. LEXIS 10436 (7th Cir. May 25,, 2011): Vital has come, shotgun in tow, seeking sanctions. See United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984) (noting that “the shotgun…
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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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