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

When Sanctions Rule Provides “Substantially Justified” Defense, District Court Must Rule Whether Conduct was Substantially Justified — Deposition Misconduct and Untimely, Revised, Post-Deposition Expert Report

From DeVille v. Givaudan Frangrances Corp., 2011 U.S. App. LEXIS 6245 (3d Cir. Mar. 25, 2011): Two discovery events are relevant to this appeal. The first occurred during the deposition of an expert witness named Michael Soudry. Elliott produced Soudry to testify about alleged statistical evidence [*5] of age discrimination at Givaudan ...
From DeVille v. Givaudan Frangrances Corp., 2011 U.S. App. LEXIS 6245 (3d Cir. Mar. 25, 2011): Two discovery events are relevant to this appeal. The first occurred during the deposition of an expert witness named Michael Soudry. Elliott produced Soudry…
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Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Effected Waiver of Privilege and Work Product — Client’s Assertion of Advice of Counsel Defense Prevails

From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm's former representation of several defendants in this action. *** Baker & McKenzie [maintains] that while the Receiver is the successor-in-interest to the corporat ...
From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm’s former representation of several defendants in this action. *** Baker…
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Pendent Venue — Discretionary — Two Approaches

From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant's Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair competition, misappropriation of trade secrets, breach of contract, br ...
From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant’s Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair…
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New York Justices on the U.S. Supreme Court: John Jay

Download associated file: John Jay Lecture NY Justices on US Supreme Court.pdf  On Wednesday, May 4, 2011, Justice Ruth Bader Ginsburg and former Chief Judge Judith Kaye will be introducing a lecture on John Jay, the first Chief Justice of the U.S. Supreme Court, as part ...
Download associated file: John Jay Lecture NY Justices on US Supreme Court.pdf  On Wednesday, May 4, 2011, Justice Ruth Bader Ginsburg and former Chief Judge Judith Kaye will be introducing a lecture on John Jay, the first Chief Justice…
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Interrogatories Asking Who Has Been Interviewed and What They Said Are Permissible Unless Asked in a Way that Effectively Infringes on Work Product — Good Quote

From United States v. Capital Tax Corp., 2011 U.S. Dist. LEXIS 13242 (N.D. Ill. Feb. 10, 2011): The challenged interrogatories and document requests ask the government to identify, among other things, each person who made decisions regarding whether to name Dukatt in this case, the dates on which those determinations were made, and any d ...
From United States v. Capital Tax Corp., 2011 U.S. Dist. LEXIS 13242 (N.D. Ill. Feb. 10, 2011): The challenged interrogatories and document requests ask the government to identify, among other things, each person who made decisions regarding whether to name…
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New Article: Developments in the Federal Law of Sanctions

A new article exploring recent trends in federal sanctions decisions can be accessed here. The five areas analyzed are: (1) extrajudicial misconduct — the required nexus between the offending act and the federal litigation; (2) the relevance of the offender’s ability ...
A new article exploring recent trends in federal sanctions decisions can be accessed here. The five areas analyzed are: (1) extrajudicial misconduct — the required nexus between the offending act and the federal litigation; (2) the relevance of the…
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Circuit Split As to Whether § 1367 Confers Supplemental Jurisdiction on Bankruptcy Courts — Federal Courts Generally Decline to Exercise Supplemental Jurisdiction If Presented with First Impression Issue of State Law

From Rhiel v. Central Mortgage Co., 2011 Bankr. LEXIS 1008 (Bankr. S.D. Ohio Mar. 30, 2011): It appears to be well-established that district courts have supplemental jurisdiction over all claims that are so related to claims asserted in a bankruptcy case or adversary proceeding that they form part of the same case or controversy.
From Rhiel v. Central Mortgage Co., 2011 Bankr. LEXIS 1008 (Bankr. S.D. Ohio Mar. 30, 2011): It appears to be well-established that district courts have supplemental jurisdiction over all claims that are so related to claims asserted in a bankruptcy…
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International Comity as Ground to Stay or Dismiss a U.S. Lawsuit in Deference to a Foreign Action — Foreign Bankruptcy Generally Entitled to Comity

From Curran v. Hindu Credit Union Operative Soc’y Ltd., 2011 U.S. Dist. LEXIS 32148 (S.D. Fla. Mar. 25, 2011): International comity is "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the ...
From Curran v. Hindu Credit Union Operative Soc’y Ltd., 2011 U.S. Dist. LEXIS 32148 (S.D. Fla. Mar. 25, 2011): International comity is “the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another…
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Summary Order from Court of Appeals Reflects Full Deliberation and Comprehensive Decision of All Issues Raised — Litigants Have No Right to Written Opinion

From Genao v. United States, 2010 U.S. Dist. LEXIS 142103 (S.D.N.Y. Sept. 16, 2010): "There is no requirement in law that a federal appellate court's decision be accompanied by a written opinion." Furman v. United States, 720 F.2d 263, 264 (2d Cir. 1983). The Supreme Court has been charged with creating rules of practice and pr ...
From Genao v. United States, 2010 U.S. Dist. LEXIS 142103 (S.D.N.Y. Sept. 16, 2010): “There is no requirement in law that a federal appellate court’s decision be accompanied by a written opinion.” Furman v. United States, 720 F.2d 263, 264…
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Disclosure of General Subject Matter of Work Done for, and Communications with, Client Does Not Effect Waiver of Attorney-Client Privilege — Detailed Disclosure May — Bills Protected Only If Content of Communications Disclosed

From Avgoustis v. Shinseki, 2011 U.S. App. LEXIS 6884 (Fed. Cir. April 6, 2011): Appellant Stanley J. Avgoustis ("Avgoustis") applied for attorneys' fees as a prevailing party under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The United States Court of Appeals for Veterans Claims ("Veterans Court") disallowed recovery ...
From Avgoustis v. Shinseki, 2011 U.S. App. LEXIS 6884 (Fed. Cir. April 6, 2011): Appellant Stanley J. Avgoustis (“Avgoustis”) applied for attorneys’ fees as a prevailing party under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The…
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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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