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

Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144 — Procedure — Alleged Bias Against Counsel Generally Insufficient to Warrant Recusal

From Sataki v. Broad. Bd. of Gov’rs, 733 F. Supp. 2d 54 (D.D.C. 2010): Currently pending before the Court is Plaintiff Elham Sataki's ... Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff's second attempt to disqualify the Court based on allegations that certain of the Court's rulings, combine ...
From Sataki v. Broad. Bd. of Gov’rs, 733 F. Supp. 2d 54 (D.D.C. 2010): Currently pending before the Court is Plaintiff Elham Sataki’s … Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff’s…
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Circumstantial Authentication of Email Evidence

From Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011): The actions of the defendant himself served to authenticate the e-mails. One e-mail indicated that Jeremy would be at a certain place at a certain time and the defendant appeared at that place and time. In other e-mails, Jeremy provided his telephone number and photograph. ...
From Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011): The actions of the defendant himself served to authenticate the e-mails. One e-mail indicated that Jeremy would be at a certain place at a certain time and the defendant appeared…
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Does Fraudulent Joinder Doctrine Apply to Plaintiffs as Well as Defendants? — Case Law Split

From Taco Bell Corp. v. Dairy Farmers of Am., 727 F. Supp. 2d 604 (W.D. Ky. 2010): The parties debate at great length whether the fraudulent joinder doctrine can ever apply to the joinder of plaintiffs. Certainly, the doctrine is generally applied to joinder of defendants. The Sixth Circuit has never affirmatively addressed thi ...
From Taco Bell Corp. v. Dairy Farmers of Am., 727 F. Supp. 2d 604 (W.D. Ky. 2010): The parties debate at great length whether the fraudulent joinder doctrine can ever apply to the joinder of plaintiffs. Certainly, the doctrine is…
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Rule 59(e) Motion to Amend Judgment — Standards

Two cases: From Duckett v. United States, (2011 U.S. Dist. LEXIS 3754 (W.D. Okla. Jan. 14, 2011): The grounds for granting relief from a judgment under Rule 59(e) " include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest i ...
Two cases: From Duckett v. United States, (2011 U.S. Dist. LEXIS 3754 (W.D. Okla. Jan. 14, 2011): The grounds for granting relief from a judgment under Rule 59(e) ” include (1) an intervening change in the controlling law, (2) new…
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Elements of Constitutional Standing

From Advanced Oral Techs. V. Nutres Research, Inc., 2011 U.S. Dist. LEXIS 5266 (D.N.J. Jan. 20, 2011): "Constitutional standing has three elements, all of which must be met: (1) the plaintiff must have suffered an injury in fact; (2) there must be a causal nexus between that injury and the conduct complained of; and (3) it must be l ...
From Advanced Oral Techs. V. Nutres Research, Inc., 2011 U.S. Dist. LEXIS 5266 (D.N.J. Jan. 20, 2011): “Constitutional standing has three elements, all of which must be met: (1) the plaintiff must have suffered an injury in fact; (2) there…
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FOIA — Metadata Is Part of a Public Record as Defined in FOIA

From Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011): No federal court has yet recognized that metadata is part of a public record as defined in FOIA. However, this precise issue has been addressed by several state courts, which have unifo ...
From Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011): No federal court has yet recognized that metadata is part of a public record as defined in FOIA.…
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Dismissal with Prejudice Appropriate for Failure to Plead Properly after “Repeated Opportunities” — No Right to Amend If Failure to Particularize Has Been Called to Plaintiff’s Attention but Not Cured

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): The district court's "decision to dismiss the [second] amended complaint with prejudice was appropriate in light of [plaintiffs'] repeated failure to cure the deficiencies in [their] pleadings." *** It is well-established that a court may dismis ...
From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): The district court’s “decision to dismiss the [second] amended complaint with prejudice was appropriate in light of [plaintiffs’] repeated failure to cure the deficiencies in [their]…
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Primary Jurisdiction — Applicaion

From Chavez v. Nestle USA, Inc., 2011 U.S. Dist. LEXIS 9773 (C.D. Cal. Jan. 10, 2011): [T]he doctrine of primary jurisdiction is to be invoked "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,' [citation], and if 'prot ...
From Chavez v. Nestle USA, Inc., 2011 U.S. Dist. LEXIS 9773 (C.D. Cal. Jan. 10, 2011): [T]he doctrine of primary jurisdiction is to be invoked “only if a claim ‘requires resolution of an issue of first impression, or of a…
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Law Firm Is Not Sufficiently Distinct from 3 of Its Partners to Constitute RICO Enterprise — Firm’s Activities Limited to Conducting Customary Legal Business

From Thomas v. Thompson, 2011 U.S. Dist. LEXIS 5600 (N.D. Miss. Jan. 20, 2011): The enterprise must be "an entity separate and apart from the pattern of activity in which it engages." *** "Moreover, plaintiffs must plead specific facts, not mere conclusory allegations, which establish the enterprise." *** Plaintiff described the ...
From Thomas v. Thompson, 2011 U.S. Dist. LEXIS 5600 (N.D. Miss. Jan. 20, 2011): The enterprise must be “an entity separate and apart from the pattern of activity in which it engages.” *** “Moreover, plaintiffs must plead specific facts, not…
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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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