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

Judicial Notice of Court Records and Factual Information Posted on Governmental Websites — Standards for Review of Pro Se Pleadings

From Chisolm v. McElvogue, 2011 U.S. Dist. LEXIS 40377 (D.S.C. Mar. 16, 2011): Plaintiff, Donsurvi Chisolm (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee in Berkeley County's Hill Finklea Detention Center (HFDC) in Moncks Corner, South Carolina, files this action in ...
From Chisolm v. McElvogue, 2011 U.S. Dist. LEXIS 40377 (D.S.C. Mar. 16, 2011): Plaintiff, Donsurvi Chisolm (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee in Berkeley County’s Hill Finklea Detention Center…
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Grable Does Not Overturn “Well-Pleaded Complaint” Doctrine for Determining Federal Jurisdiction, Which Must Arise Out of Claims Stated — Declaratory Judgment Claim Anticipating Defense Insufficient

From California Shock Trauma Air Rescue v. State Compensation Insurance Fund, 2011 U.S. App. LEXIS 6756 (9th Cir. Mar. 31, 2011): [I]s the expectation of a federal defense, without more, sufficient to establish federal jurisdiction over a state-law claim? *** CALSTAR provides air-ambulance rescue services to employees injured in ...
From California Shock Trauma Air Rescue v. State Compensation Insurance Fund, 2011 U.S. App. LEXIS 6756 (9th Cir. Mar. 31, 2011): [I]s the expectation of a federal defense, without more, sufficient to establish federal jurisdiction over a state-law claim? ***…
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No Right to Sidebars during Presentation of Testimony at Trial

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court's denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was acting improperly in requesting a sidebar. Aleynikov has not shown that he ...
From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court’s denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was…
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No “Substantial Ground for Difference of Opinion” for § 1292 Purposes Where 14 District Courts in Circuit Have Addressed the Issue

From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010): In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a "controlling question of law"; (2) whether there is "substantial ground for difference of opinion" a ...
From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010): In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a…
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The Importance of Rule 403 in Evaluating Expert Testimony — Good Quote

From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert's testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509 U.S. at 595; Brock v. Caterpillar, Inc., 94 F.3d 220, 226 (6th Cir. 1996). "[E]xpert evidence can ...
From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert’s testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509…
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Samples of Overly Broad and Burdensome Interrogatories — Party May Not Refuse to Answer Interrogatories, Then Claim the Interrogatories Are Cumulative of Later Deposition — Examples of Meritorious Cumulativeness Objections

From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011): [Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are, "by [their] nature," overbroad and unduly burdensome. Indeed, the cases cited by ...
From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011): [Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are,…
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Mandatory Abstention from Federal “Related to” Bankruptcy Jurisdiction — What Constitutes “Timely Adjudicated” within 28 U.S.C. § 1334(c)(2)

From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs' claims, pursuant to 28 U.S.C. § 1334(b); and (2) whether the district court properly declined to abstain from exercising that jurisdiction, p ...
From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs’ claims, pursuant to 28 U.S.C. § 1334(b); and (2)…
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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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Recent Posts

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far From Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

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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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