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

Filing of Complaint May Violate § 1927 — Circuit Split

From Schaefer Salt Recovery, Inc., 2011 Bankr. LEXIS 1778 (Bankr. D.N.J. Jan. 21, 2011): Sanctions may be properly awarded against Khoudary and SSR under ... § 1927, as the Chapter 7 petition was plainly filed for an improper purpose. The Chapter 7 case was filed only 37 days after the dismissal of SSR's Chapter 11 case. Khoudary and ...
From Schaefer Salt Recovery, Inc., 2011 Bankr. LEXIS 1778 (Bankr. D.N.J. Jan. 21, 2011): Sanctions may be properly awarded against Khoudary and SSR under … § 1927, as the Chapter 7 petition was plainly filed for an improper purpose. The…
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Notice of Appeal from Judgment Encompasses All Prior Rulings and Orders Where Appellant Does Not Designate Specific Determinations Only — Reference to One Order Does Not Preclude Appeal from Others

From Bentkowski v. Scene Magazine, 2011 U.S. App. LEXIS 7912 (6th Cir. April 19, 2011): Bentkowski claims that the district court abused its discretion by denying his motion for an extension of time to conduct discovery and by striking his first amended complaint as a sanction. Appellees claim that we lack jurisdiction over these ap ...
From Bentkowski v. Scene Magazine, 2011 U.S. App. LEXIS 7912 (6th Cir. April 19, 2011): Bentkowski claims that the district court abused its discretion by denying his motion for an extension of time to conduct discovery and by striking his…
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Sua Sponte Sanctions Under Rule 11 May Not Include an Award of Attorneys’ Fees to Opposing Counsel — Notice of Potential Rule 11 Sanctions ≠ Due Process Notice of Potential Inherent Power Sanctions

From Wright v. CompGeeks.com, 2011 U.S. App. LEXIS 9133 (10th Cir. May 4, 2011): “The relevant section of Rule 11 states that a ‘sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of par ...
From Wright v. CompGeeks.com, 2011 U.S. App. LEXIS 9133 (10th Cir. May 4, 2011): “The relevant section of Rule 11 states that a ‘sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on…
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Internet Evidence — Newspaper Articles Taken from Internet Sufficiently Authenticated by Distinctive Newspaper and Website Designs, Dates of Publication, Page Numbers, and Web Addresses

From Ciampi v. City of Palo Alto, 2011 U.S. Dist. LEXIS 50245 (N.D. Cal. May 11, 2011): ***Plaintiff has submitted a number of newspaper articles in support of his defamation claim.... Defendants object to these articles on grounds of relevance, hearsay, and lack of proper authentication. However, these articles are directly relevant to ...
From Ciampi v. City of Palo Alto, 2011 U.S. Dist. LEXIS 50245 (N.D. Cal. May 11, 2011): ***Plaintiff has submitted a number of newspaper articles in support of his defamation claim…. Defendants object to these articles on grounds of relevance,…
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Remittitur in Diversity Action is Governed by State Law — Expert with Training but No Practical Experience Still Qualified to Opine

From Mississippi Phosphates Corp. v. Analytic Stress Relieving, Inc., 402 Fed. Appx. 866 (5th Cir. 2010): A. Remittitur *** We review a denial of new trial or remittitur for abuse of discretion. Foradori v. Harris, 523 F.3d 477, 497-98 (2008). In Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 ...
From Mississippi Phosphates Corp. v. Analytic Stress Relieving, Inc., 402 Fed. Appx. 866 (5th Cir. 2010): A. Remittitur *** We review a denial of new trial or remittitur for abuse of discretion. Foradori v. Harris, 523 F.3d 477, 497-98 (2008).…
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Primary Jurisdiction — Limited to Cases of First Impression or “Particularly Complicated” Issue Committed by Congress to Agency — Not Designed for Court to Obtain Agency’s “Expert Advice”

From Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (April 13, 2011): The primary jurisdiction doctrine is applicable only if a claim "requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Clark v. Time Warner Cable, 523 F. ...
From Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (April 13, 2011): The primary jurisdiction doctrine is applicable only if a claim “requires resolution of an issue of first impression, or of a particularly complicated issue that Congress…
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Alien Tort Statute (ATS / ATCA) Confers Jurisdiction for Torts Committed Both Inside and Outside of the United States — Case Law Split as to Torts Committed Inside U.S.

From Magnifico v. Villanueva, 2011 U.S. Dist. LEXIS 45509 (S.D. Fla. April 20, 2011): Plaintiffs, citizens of the Philippines, seek damages from the defendants based on allegations of forced labor and human trafficking in addition to violations of both federal and state fair labor laws for denial of overtime compensation and other commo ...
From Magnifico v. Villanueva, 2011 U.S. Dist. LEXIS 45509 (S.D. Fla. April 20, 2011): Plaintiffs, citizens of the Philippines, seek damages from the defendants based on allegations of forced labor and human trafficking in addition to violations of both federal…
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Failure to File 60(b) Motion within 28 Days of Judgment to Toll Date for Filing Notice of Appeal Precludes Appellate Jurisdiction — Discovery Sanctions Motions Are Inextricably Intertwined with Merits and Toll Time to Appeal from Judgment

From Johnson v. Univ. of Rochester Med. Ctr., 2011 U.S. App. LEXIS 7980 (2d Cir. April 19, 2011): This Court lacks appellate jurisdiction over Johnson's appeal from the district court's February 19, 2010 judgment and order dismissing his complaint and denying leave to amend. Pursuant to Federal Rule of Appellate Procedure 4, a party mus ...
From Johnson v. Univ. of Rochester Med. Ctr., 2011 U.S. App. LEXIS 7980 (2d Cir. April 19, 2011): This Court lacks appellate jurisdiction over Johnson’s appeal from the district court’s February 19, 2010 judgment and order dismissing his complaint and…
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Defendant Who Unsuccessfully Moves to Dismiss on Personal Jurisdiction Grounds, Then Withdraws from Litigation, Cannot Appeal Ensuing Default Judgment on Personal Jurisdiction Grounds

From City of N.Y. v. Mickalis Pawn Shop, LLC, 2011 U.S. App. LEXIS 9104 (2d Cir. May 4, 2011): These appeals present what appear to be two issues of first impression in this Circuit. First, whether a defendant who repeatedly moves to dismiss for lack of personal jurisdiction, but then withdraws from the litigation after those motions ar ...
From City of N.Y. v. Mickalis Pawn Shop, LLC, 2011 U.S. App. LEXIS 9104 (2d Cir. May 4, 2011): These appeals present what appear to be two issues of first impression in this Circuit. First, whether a defendant who repeatedly…
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When Treating Physician Must Issue 26(a)(2)(B) Expert Report — Opinions Not Formed in the Course of Treatment and Based on Additional Materials — First Impression Decision Not Applied Retroactively

From Goodman v. Staples, the Office Superstore, LLC, 2011 U.S. App. LEXIS 8979 (9th Cir. May 3, 2011): Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness "if the witness is one retained or specially employed to provide expert testimony in the case . . . ." Generally speaking, treat ...
From Goodman v. Staples, the Office Superstore, LLC, 2011 U.S. App. LEXIS 8979 (9th Cir. May 3, 2011): Federal Rule of Civil Procedure 26(a)(2) requires a party to timely disclose a written report of a witness “if the witness is…
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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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