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

The Finality Requirement for Judicial Review of an Award under the Federal Arbitration Act — 2, Maybe 3, Exceptions

From Pearl Seas Cruises, LLC v. Irving Shipbuilding Inc, 2011 U.S. Dist. LEXIS 12487 (D. Conn. Feb. 9, 2011): Under the FAA "a district court does not have the power to review an interlocutory ruling by an arbitration panel." Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980). "The language of the Act is unambiguous: ...
From Pearl Seas Cruises, LLC v. Irving Shipbuilding Inc, 2011 U.S. Dist. LEXIS 12487 (D. Conn. Feb. 9, 2011): Under the FAA “a district court does not have the power to review an interlocutory ruling by an arbitration panel.” Michaels…
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Default Judgment Procedure

From Enobakhare v. Carpoint, LLC, 2010 U.S. Dist. LEXIS 141481 (E.D.N.Y. Jan. 10, 2011): Rule 55(a) of the Federal Rules of Civil Procedure provides: "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter ...
From Enobakhare v. Carpoint, LLC, 2010 U.S. Dist. LEXIS 141481 (E.D.N.Y. Jan. 10, 2011): Rule 55(a) of the Federal Rules of Civil Procedure provides: “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead…
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Duties of 30(b)(6) Witnesses and the Organizations Presenting Them — Trial Counsel Normally Inappropriate 30(b)(6) Witness — Unprepared Witness = Failure to Appear — Witness Cannot Testify Exclusively from Document Prepared by Litigation Counsel

From In re Neurontin Antitrust Litig., 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011): Pursuant to Rule 30(b)(6), "a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or government agency." *** Use of Rule 30(b)(6) witnesses is meant to benefit the discovery process by ...
From In re Neurontin Antitrust Litig., 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011): Pursuant to Rule 30(b)(6), “a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or…
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Request for Admission to Authenticate Website Evidence — Attaching Printouts Not Enough — Responding “Document Speaks for Itself” to RFA “Evasive” — Private Websites Not Self-Authenticating

From Adobe Sys. Inc. v. Christenson, 2011 U.S. Dist. LEXIS 16977 (D. Nev. Feb. 7, 2011): Request No. 163 asks Defendants to admit that "the reviews attached hereto as Exhibit C were posted on "resellerratings.com." Request No. 178 asks Defendants to admit that "the reviews attached hereto as Exhibit D were posted on "Eopinions.com." Acc ...
From Adobe Sys. Inc. v. Christenson, 2011 U.S. Dist. LEXIS 16977 (D. Nev. Feb. 7, 2011): Request No. 163 asks Defendants to admit that “the reviews attached hereto as Exhibit C were posted on “resellerratings.com.” Request No. 178 asks Defendants…
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Refusal to Strike Expert Report Despite Failure to Disclose Compensation at All and Prior Testimony Accurately in Initial, Unsigned Report — OK to Rely on Counsel for Expert’s Case List

From White v. City of Chicago, 2011 U.S. Dist. LEXIS 15722 (N.D. Ill. Feb. 16, 2011): Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In Plaintiff's view, "the prejudice [from this omission] would be incurable" because "it is simply too ...
From White v. City of Chicago, 2011 U.S. Dist. LEXIS 15722 (N.D. Ill. Feb. 16, 2011): Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In…
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Nevada Would Follow New York’s Strict Application of In Pari Delicto — Erie Prediction — Pennsylvania’s More Liberal Rule Questioned

From USCAM Liquidating Trust v. Deloitte & Touche, LLP, 2011 U.S. Dist. LEXIS 16123 (D. Nev. Feb. 16, 2011): Under Nevada law, the knowledge of an officer or agent is imputed to the corporation when the agent obtains the knowledge "while acting in the course of his employment and within the scope of his authority, and the corporation is ...
From USCAM Liquidating Trust v. Deloitte & Touche, LLP, 2011 U.S. Dist. LEXIS 16123 (D. Nev. Feb. 16, 2011): Under Nevada law, the knowledge of an officer or agent is imputed to the corporation when the agent obtains the knowledge…
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Spoliation Alone Inadequate to Allow a Party That Has Produced No Evidence to Survive Summary Judgment

From Unique Indus., Inc. v. Alberta Ltd., 2011 U.S. Dist. LEXIS 15884 (D.D.C. Feb. 17, 2011): The plaintiff ... argues that the defendant should not be granted summary judgment because Sharma's patent agent, Seaby, failed to maintain the original drawings that Sharma allegedly sent to Seaby in connection with the patents at issue.... In ...
From Unique Indus., Inc. v. Alberta Ltd., 2011 U.S. Dist. LEXIS 15884 (D.D.C. Feb. 17, 2011): The plaintiff … argues that the defendant should not be granted summary judgment because Sharma’s patent agent, Seaby, failed to maintain the original drawings…
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RICO — Fraud Claim That Is Mere Restatement of Contract Claim Inadequate to State Mail or Wire Fraud Predicate — When Fraud Claim Is Not Mere Restatement of Contract Claim under New York Law

From Sampson v. Medisys Health Network Inc., 2011 U.S. Dist. LEXIS 12697 (E.D.N.Y. Feb. 8, 2011): To state a RICO claim pursuant to 18 U.S.C. §§ 1962 and 1964(c), a plaintiff must, inter alia, allege a defendant participated or conspired to participate in a "pattern of racketeering activity." 18 U.S.C. § 1962(a), (b), (c) and (d). P ...
From Sampson v. Medisys Health Network Inc., 2011 U.S. Dist. LEXIS 12697 (E.D.N.Y. Feb. 8, 2011): To state a RICO claim pursuant to 18 U.S.C. §§ 1962 and 1964(c), a plaintiff must, inter alia, allege a defendant participated or conspired…
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Submission of Privileged or Work Product Materials to Court for In Camera Review Does Not Waive Applicable Protection

From Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003): [T]he SEC maintains that the [defendant's] uninvited submission of the transcripts for the district court's in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege. *** [W]e know of no case, and the SEC points to none, where the submiss ...
From Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003): [T]he SEC maintains that the [defendant’s] uninvited submission of the transcripts for the district court’s in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege.…
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No Equitable Tolling of 30-Day or One-Year Limits on Removal — Circuit Split

From Staggs v. Union Pacific R.R., 2011 U.S. Dist. LEXIS 13022 (E.D. Ark. Jan. 28, 2011): Section 1446 of Title 28 establishes the procedure for removal from state court. Relevant to the instant case is § 1446(b), which provides: The notice of removal of a civil action or proceeding shall be filed within thirty ...
From Staggs v. Union Pacific R.R., 2011 U.S. Dist. LEXIS 13022 (E.D. Ark. Jan. 28, 2011): Section 1446 of Title 28 establishes the procedure for removal from state court. Relevant to the instant case is § 1446(b), which provides: 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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