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

Failure to Prosecute under Rule 41(b) — Five Factors

From Katina v. Mortgage Elec. Registration Sys., 2011 U.S. Dist. LEXIS 4594 (E.D. Cal. Jan. 18, 2011): A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. *** Specifically, the court must conside ...
From Katina v. Mortgage Elec. Registration Sys., 2011 U.S. Dist. LEXIS 4594 (E.D. Cal. Jan. 18, 2011): A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court…
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Statement Made in Mediation Admitting Liability for Wrong That Is Unrelated to the Subject of the Mediation Is Not Excluded by Fed.R.Evid. 408 or the Federal Alternative Dispute Resolution Act

From Deluca v. Allied Domecq Quick Serv. Restaurants, 03CV5142(JFB)(AKT), 2006 WL 2713944 (E.D.N.Y. Sept. 22, 2006): Defendant argued in support of its motion in limine that Fed.R.Civ.P. 408 and the ADRA [28 U.S.C. §§ 651-668] protect communications such as the one at issue here [an alleged admission of a tortious act separate and apar ...
From Deluca v. Allied Domecq Quick Serv. Restaurants, 03CV5142(JFB)(AKT), 2006 WL 2713944 (E.D.N.Y. Sept. 22, 2006): Defendant argued in support of its motion in limine that Fed.R.Civ.P. 408 and the ADRA [28 U.S.C. §§ 651-668] protect communications such as the…
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Burford Abstention — General Principles — Good Quotes (Anti-Abstention)

From Chico Serv. Station, Inc. v. SOL Puerto Rico Ltd., 2011 U.S. App. LEXIS 1568 (1st Cir. Jan. 26, 2011): A. Burford Abstention 1. General Principles Abstention occupies an uneasy position in the jurisprudence of federal court jurisdiction. As the common refrain goes, "federal courts have a ' ...
From Chico Serv. Station, Inc. v. SOL Puerto Rico Ltd., 2011 U.S. App. LEXIS 1568 (1st Cir. Jan. 26, 2011): A. Burford Abstention 1. General Principles Abstention occupies an uneasy position in the jurisprudence of federal court jurisdiction. As the…
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Putative Class Representative Lacks Standing to Appeal Denial of Motion to Add New Plaintiff Who Would Have Standing to Bring Certain Claim — Only Prospective New Plaintiff Has Standing

From Thomas v. Metropolitan Life Ins. Co., 2011 U.S. App. LEXIS 2024 (10th Cir. Feb. 2, 2011): Plaintiffs-Appellants Robert and Amanda Thomas appeal from the district court's grant of summary judgment in favor of Defendants-Appellees Metropolitan Life Insurance Companies, Inc. and Metlife Securities, Inc. (sometimes collectively referred ...
From Thomas v. Metropolitan Life Ins. Co., 2011 U.S. App. LEXIS 2024 (10th Cir. Feb. 2, 2011): Plaintiffs-Appellants Robert and Amanda Thomas appeal from the district court’s grant of summary judgment in favor of Defendants-Appellees Metropolitan Life Insurance Companies, Inc.…
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FRAP 38 Sanctions — Standards (Third Circuit) — Court Exercises Caution to Avoid Chilling Novel Theories

From Premier Pork, LLC. V. Westin Packaged Meats, Inc., 2011 U.S. App. LEXIS 1262 (3d Cir. Jan. 19, 2011): Federal Rule of Appellate Procedure 38 authorizes us to sanction an appellant who files a frivolous appeal by "award[ing] just damages and single or double costs to the appellee." Such damages are awarded in the case of a frivolous ...
From Premier Pork, LLC. V. Westin Packaged Meats, Inc., 2011 U.S. App. LEXIS 1262 (3d Cir. Jan. 19, 2011): Federal Rule of Appellate Procedure 38 authorizes us to sanction an appellant who files a frivolous appeal by “award[ing] just damages…
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CAFA — Court Is Limited to Face of Complaint in Determining Whether Certain Elements of “Local Controversy” Exception Apply — “Relief Sought” and “Alleged Conduct”

From Coleman v. Estes Express Lines, Inc., 2011 U.S. App. LEXIS 1538 (9th Cir. Jan. 25, 2011): Under the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (2005), defendants may remove a diversity class action from state to federal court when, among other conditions, the parties are minimally diverse and the amo ...
From Coleman v. Estes Express Lines, Inc., 2011 U.S. App. LEXIS 1538 (9th Cir. Jan. 25, 2011): Under the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), defendants may remove a diversity class…
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Inadvertent Waiver Cannot Effect a Subject Matter Waiver under Rule 502 — State Law Governs Privilege in Diversity Case but Federal Law Determines Waiver

From Seyler v. T-Sys. N. Am., Inc., 2011 U.S. Dist. LEXIS 6065 (S.D.N.Y. Jan. 20, 2011): On December 14, 2009, the plaintiff filed suit against T-Systems, her former employer, and Mihallik, her former manager, *** alleging state-law claims of a hostile work environment, retaliation, and intentional infliction of emotional distress. ***< ...
From Seyler v. T-Sys. N. Am., Inc., 2011 U.S. Dist. LEXIS 6065 (S.D.N.Y. Jan. 20, 2011): On December 14, 2009, the plaintiff filed suit against T-Systems, her former employer, and Mihallik, her former manager, *** alleging state-law claims of a…
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Removal — Fourth Circuit Declines to Adopt Last-Served Defendant Rule, Adheres to Intermediate Rule, Requiring the First-Served Defendant to Remove within 30 Days and Every Later-Served Defendant to Do So, Too

From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010): Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking remov ...
From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010): Section 1446 of Title 28 describes the…
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Removal — Ninth Circuit Adopts Later-Served Defendant Rule; While All Served Defendants Must Consent to Removal before Entry of Judgment, Unserved Defendants Need Not; Dismissal of FDIC as Defendant Is Not Jurisdiction-Stripping

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant's thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his own thirty days to remove after being served (the later-serve ...
From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant’s thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his…
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Standard of Review of Magistrate Judge’s Discovery Decisions — Common Interest Doctrine Applies to Legal Advice Shared between Parent and Sub

From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review "Matters concerning discovery generally are considered 'nondispositive' of the litigation . . . [and] are committed to the discretion of the magistrate, reviewable by the district court under the 'clea ...
From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation . . . [and] are committed to 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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