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

Magistriate Judges and the Power to Sanction

A panel of the Second Circuit split last year on the question whether a magistrate judge possesses the power to issue sanctions, as opposed to merely recommending them. See Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010) and our post of February 2, 2010. Under Rule 53(c)(2), special masters may impose non-contempt sanctions. It seems odd that there would be any que ...
A panel of the Second Circuit split last year on the question whether a magistrate judge possesses the power to issue sanctions, as opposed to merely recommending them. See Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010) and our…
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Insurers Suffer No RICO Injury in Covering More Expensive, Off-Label Use of Patented Drug Prescribed Due to Fraudulent Representations of Drug Company to Doctors

From Ironworkers Local Union 68 v. Astrazeneca Pharma., LP, 2011 U.S. App. LEXIS 4960 (11th Cir. Mar. 11, 2011): These cases involve payments made by health insurers for 1 the prescription drug Seroquel, an antipsychotic medication manufactured and marketed in the United States by AstraZeneca Pharmaceuticals LP ("AstraZeneca"). Seroqu ...
From Ironworkers Local Union 68 v. Astrazeneca Pharma., LP, 2011 U.S. App. LEXIS 4960 (11th Cir. Mar. 11, 2011): These cases involve payments made by health insurers for 1 the prescription drug Seroquel, an antipsychotic medication manufactured and marketed in…
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Appellate Review of District Court-Ordered Arbitration Must Specify the Standard of Review or Is Limited to FAA Grounds — Mere Recitation of “Appeal Rights” Inadequate — No Direct Appeal to Circuit from Court-Ordered Arbitration

From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a ... magistrate judge held a settlement conference three weeks before the trial's scheduled start date, the parties stipulated to binding arbitration of Johnson's FCRA claim. The District Court entered the parties' stipulation as ...
From Johnson v. Wells Fargo Home Mortgage, Inc., 2011 U.S. App. LEXIS 2908 (9th Cir. Feb. 15, 2011): After a … magistrate judge held a settlement conference three weeks before the trial’s scheduled start date, the parties stipulated to binding…
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Where Agency Has Its Counsel Sign Formal Determination, It Waives Privilege and Work Product for All Related Communications with Counsel and for Counsel’s Investigation — Depositions of Counsel Permitted

From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division ("ACRD") brought suit against Defendants Frito-Lay. The ACRD brought suit after investigating the complaints of discrimination brought by the Intervenor Shel ...
From Arizona ex rel. Goddard v. Frito-Lay, Inc., 2011 U.S. Dist. LEXIS 22813 (D. Ariz. Mar. 7, 2011): This discovery dispute arises in a case in which Arizona Civil Rights Division (“ACRD”) brought suit against Defendants Frito-Lay. The ACRD brought…
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Rule 37(c)(1) Preclusion Sanction for Untimely Expert Report — Factors for “Substantially Justified” and “Harmless Error” Defenses

From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party's failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the party being barred from using that information or witness at the trial, unless the failure was substantially ...
From Jalbert v. Grautski, 2008 U.S. Dist. LEXIS 119268 (D. Mass. Mar. 31, 2008): Under Fed. R. Civ. P. 37.1(c), a party’s failure to disclose information or identify a witness as required by Rule 26(a) will normally result in the…
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The Line Between Expert and Lay Opinion Testimony — Testimony as to Value of Real Property from an Indirect Corporate Owner — Disclosure Implications

From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of a limited partnership qualifies to testify about the fair market value of partnership property under either the Property Ow ...
From Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 Tex. LEXIS 190 (Tex. Sup. Ct. Mar. 11, 2011): In this case we address *** whether an employee of the corporate general partner of a…
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Territoriality or Extraterritoriality of RICO Determined by Location of Enterprise — Hertz & Boyle Set Standards for Determination

From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs' Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in a global money-laundering scheme. *** Plaintiffs allege a repres ...
From European Community v. RJR Nabisco, Inc., 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011): Plaintiffs’ Second Amended Complaint — a structureless morass of allegations, devoid of any sequential description of events — generally asserts that Defendants engaged in…
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Circumstantial Authentication of Email Evidence

From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant's e-mail address on her computer at school. *** She testified that she received approximately 140 e-mails from Defendant. *** ...
From Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct. 18, 2010): Shortly after exchanging e-mail addresses with Defendant, the complainant began receiving e-mails from Defendant’s e-mail address on her computer at school. ***…
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10b-5 Count Requires PSLRA Sanctions Inquiry Even If Plaintiff Prevails on Others — Failure to Satisfy Rule 9(b) Not Necessarily Sanctionable — Position Supported by Some Authority and Not Foreclosed in Circuit Is Not Frivolous

From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff's initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities Litigation Reform Act ("PSLRA"), the district court was required at the close of litigation to ente ...
From Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011): Because Fishoff’s initial complaint included a cause of action for violations of Section 10(b) of the Securities Exchange Act of 1934, pursuant to the terms of the Private Securities…
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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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