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

Advisory Committee Note to Rule 11 Does Not Create Any Exception to the 21-Day Safe Harbor Requirement

From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs' motion for sanctions for failure to comply with the 21-day "safe harbor," which requires Rule 11 motions to be served on the opposing party 21 days prior to their filing, in order to afford that party an ...
From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011): Here, the district court was required to deny plaintiffs’ motion for sanctions for failure to comply with the 21-day “safe harbor,” which requires Rule 11 motions…
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The Problems with Legislative History

From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in "'looking over a crowd and picking out your friends.'" Se ...
From Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005): First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise…
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No Fed.R.App.P. 38 Sanctions Absent Separate Motion — § 1927 Sanctions Particularly Apt for Groundless Appeal of Arbitration Award

From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court's order granting plaintiff Merrill Lynch's motion to confirm an arbitration award in this int ...
From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court’s order…
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Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam's Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from Diane Meale to Roskam's Customer Service Department (the “Meale Email”) as evidence in the likelihood of confusion an ...
From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam’s Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from…
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Experts — Lack of Certification in Field Not Disqualifying — Expert’s Failure to Remember Every Document Reviewed Irrelevant, As Is Mistaken Understanding of Relevant Dates — Good Quote

From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry, primarily in sales but also in marketing. *** Bodeker has sold or supervised the sale of over 1000 c ...
From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry,…
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Factors in Determining Whether to Exercise Supplemental Jurisdiction Once Federal Jurisdiction Has Been Found Lacking — Ninth Circuit Articulation

From Wadhwa v. Aurora Loan Servs., LLC, 2011 U.S. Dist. LEXIS 45489 (E.D. Cal. April 27, 2011): Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction . . . ." 28 U.S.C. § 1367(c)(3); ...
From Wadhwa v. Aurora Loan Servs., LLC, 2011 U.S. Dist. LEXIS 45489 (E.D. Cal. April 27, 2011): Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims if “the district court has…
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Trial Subpoena Served on a Party Must Be Limited to Documents and Things Previously Disclosed, and Cannot Be Used to End Run Discovery Deadlines Set by Court

From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010): This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule 45, Federal Rules of Civil Procedure.... The subpoena seeks documents which, by their nature, are oth ...
From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010): This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule…
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Appeals — Affirming on Alternate Grounds Supported by the Record vs. Not Considering Issues that the District Court Did Not Reach

From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm "on any ground supported by the record, even if the district court did not rely on the ground." Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th C ...
From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm “on any ground supported by the record, even if the district…
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Neither State Action Doctrine Nor Implied Preemption Exemption to Antitrust Liability Apply to Actions/Regulatory Schemes of Foreign Nations

From In re Transpacific Passenger Air Transp. Antitrust Litig., 2011 U.S. Dist. LEXIS 49853 (N.D. Cal. May 9, 2011): This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transpacific air passenger travel, in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 ...
From In re Transpacific Passenger Air Transp. Antitrust Litig., 2011 U.S. Dist. LEXIS 49853 (N.D. Cal. May 9, 2011): This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transpacific air…
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Patents May Be Held Unenforceable as Spoliation Sanction — -Subjective Bad Faith for Inherent Power (Not “Should Have Known”) — Crime-Fraud Exception to Attorney-Client Privilege Due to Spoliation (= Obstruction)

From Micron Tech., Inc. v. Rambus Inc., 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011): Rambus Inc. ("Rambus") appeals the decision of the United States District Court for the District of Delaware holding that the twelve Rambus patents asserted against Micron Technology, Inc., Micron Electronics, Inc., and Micron Semiconductor Produ ...
From Micron Tech., Inc. v. Rambus Inc., 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011): Rambus Inc. (“Rambus”) appeals the decision of the United States District Court for the District of Delaware holding that the twelve Rambus patents…
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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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