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

New Delaware Chancery Court Guidelines for Preservation of Electronically Stored Information — Spoliation/Electronic Discovery

The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases ... a party and its counsel (in-house and outside) s ...
The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases … a party and its counsel (in-house and outside) should: • Take a…
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Procedural Untimeliness Forgivable on Grounds of “Excusable Neglect” under Rule 6(b)(1) — Factors — Delay Caused by Obtaining Needed Permission to File Affidavit

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): ***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar concedes that the Gijbels Affidavit is untimely but argues that the untimeliness "did not ...
From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): ***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar…
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Factors in Deciding Whether to Exclude an Untimely Expert Report under Rule 37(c)(1)

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must submit a written report that includes, among other things, "a complete statement of all opinions the witness will express and the basis and reas ...
From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must submit a written report that includes, among other things,…
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Jury Comprehension of Civil RICO — Good Quote

From Mayfield SWD, LLC. v. Hampton, 2011 U.S. Dist. LEXIS 5617 (W.D. Okla. Jan. 19, 2011): It is sometimes difficult to envision how, even after a detailed and thorough explanation of the fine points of RICO's "enterprises," "patterns," and the like, a properly instructed jury's reaction could be other than a blank stare. ...
From Mayfield SWD, LLC. v. Hampton, 2011 U.S. Dist. LEXIS 5617 (W.D. Okla. Jan. 19, 2011): It is sometimes difficult to envision how, even after a detailed and thorough explanation of the fine points of RICO’s “enterprises,” “patterns,” and the…
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Judicial Immunity Extends Even to Malicious or Ultra Vires Acts Taken in a Judicial Capacity — Extends to Court Clerks, Too

From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): "A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity." Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990). Whether a judge acted in a "judicial ca ...
From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): “A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity.” Fields v.…
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That Continued Prosecution of Claim Would Cause Counsel to Violate Rule 11 = Grounds for Withdrawal

From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian's claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil Procedure qualifies as a permissible reason for withdrawal. See e.g., Collins v. Astrue, No. 1:08-CV-00 ...
From Acolatse v. Astrue, 2011 U.S. Dist. LEXIS 4835 (N.D. Cal. Jan. 12, 2011): Kalagian’s claim that continuing to pursue this matter on behalf of Acolatse may subject him to sanctions under Rule 11 of the Federal Rules of Civil…
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RICO — Successor Entities Are Insufficiently Distinct to Comprise an Enterprise

From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. "To state a claim under RICO, 18 U.S.C. § 1962(c), a plaintiff must demonstrate: (1) the conduct; (2) of an enterprise; ...
From Leisher v. Wachovia Mortgage, Inc., 2011 U.S. Dist. LEXIS 3037 (S.D. Cal. Jan. 12, 2011): The moving Defendants contend that the RICO claim should be dismissed on the basis that it is inadequately pled. “To state a claim under…
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Reconsideration Motions — Second Circuit Standards

From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might ...
From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS 3850 (D. Conn. Jan. 14, 2011): The standard for granting motions for reconsideration is strict; motions for reconsideration “will generally be denied unless the moving party can point to…
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Existence of Contract Compelling Arbitration Is for Court to Decide — Party Consistently Opposing Arbitration Does Not Waive Right to Judicial Determination by Seeking Arbitral Resolution of Same Question, Too

From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that "[a]rbitration is strictly a matter of consent and thus 'is a way to resolve those disputes--but only those disputes--that the ...
From Dedon GmbH and Dedon Inc. v. Janus et Cie, 2011 U.S. App. LEXIS 262 (2d Cir. Jan. 6, 2011): A. Dispute Involving the Existence of the Contract *** The Supreme Court recently reiterated that “[a]rbitration is strictly a matter…
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Experts — A Different Standard May Be Applied to Guns for Hire

From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert's report is prepared for litigation, "the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on 'scientifically valid principles.'" [Daubert v. ...
From Edmons v. Home Depot, USA, Inc., 2011 U.S. Dist. LEXIS 3811 (D. Or. Jan. 14, 2011): [T]here is a presumption that where an expert’s report is prepared for litigation, “the party proffering it must come forward with other objective,…
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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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