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

Admissibility of Emails Retrieved without Permission from Another’s Computer Is Governed by Federal Stored Communications Act, Not Wiretap Act — Exclusion Not Mandated by SCA

From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in the Common Pleas Court of Hocking County by Jana Kaiser. The order prohibited the defendant from having contact wi ...
From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010): The defendant is charged with a count of violating a *** civil protection order that was obtained in…
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Expert Testimony Need Not be “Complicated,” Just Helpful — “Basic Math” Damages Testimony Admissible under 702 — Alternatively, under 1006 as Summary

From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner's testimony did "not meet the helpful requirement of Fed. R. Evid. 702 and Daubert [v. Merrell Dow Pharms ...
From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011): In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner’s testimony…
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Spoliation — Adverse-Inference Standards — Sixth Circuit

From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct resulted in its destruction. Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 201 ...
From Alexander v. Del Monte Corp., 2010 U.S. Dist. LEXIS 139465 (E.D. Mich. Jan. 11, 2011): An adverse inference instruction is appropriate where a party knew that the evidence was relevant to some issue at trial and his culpable conduct…
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Two-Step Approach to Ascertain Compliance with Rule 11: First, Assess Plausibility; If Plausibility Is Wanting, Second, Gauge the Reasonableness of Pre-Assertion Inquiry

From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a "two-part analysis" for use in determining the legal sufficiency of a complaint, under which the trial court "looks first to the facial plausibility of th ...
From Owensby v. Estate of Phillips, 2010 N.C. App. LEXIS 2302 (N.C. App. Dec. 7, 2010) (decided under the North Carolina equivalent of Fed.R.Civ.P. 11): The Supreme Court has adopted a “two-part analysis” for use in determining the legal sufficiency…
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Derivative Action Predicated on Failure to Prevent Corporate Liability under False Claims Act Is Removable under Grable Even If False Claims Act Liability Is Separately Being Adjudicated in another Federal Action

From Prince v. Berg, 2011 U.S. Dist. LEXIS 1071 (N.D. Cal. Jan. 3, 2011): This shareholders derivative action was filed in San Mateo Superior Court and was removed here by defendants, based on their contention that the claims arise under federal law. The complaint alleges that nominal defendant Oracle Corporation engaged in a scheme ove ...
From Prince v. Berg, 2011 U.S. Dist. LEXIS 1071 (N.D. Cal. Jan. 3, 2011): This shareholders derivative action was filed in San Mateo Superior Court and was removed here by defendants, based on their contention that the claims arise under…
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In Adjudicating a Mixed Goods and Services Contract, or a Contract that Involves the Sale of Goods as Well as Real Estate, Court Applies the Predominant Purpose Test to Determine whether Contract Is Subject to UCC

From Cranpark, Inc., v. Rogers Group, Inc., 721 F. Supp. 2d 613 (N.D. Ohio 2010): The case at bar appears to offer an issue of first impression: when a contract involves the sale of goods, as well as a real estate term, and the goods have no prior relationship to the real estate (e.g., as a fixture, as a mineral, or as a crop) d ...
From Cranpark, Inc., v. Rogers Group, Inc., 721 F. Supp. 2d 613 (N.D. Ohio 2010): The case at bar appears to offer an issue of first impression: when a contract involves the sale of goods, as well as a real…
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Court-Appointed Receiver Entitled to Absolute Judicial Immunity — Duties “Functionally Comparable to Those of Judges”

From Ramirez v. Pasternak, 2011 U.S. App. LEXIS 443 (9th Cir. Jan. 7, 2011): *** Pasternak was entitled to absolute quasi-judicial immunity for actions undertaken in his capacity as receiver that were "functionally comparable to those of judges." Curry v. Castillo (In re Castillo), 297 F.3d 940, 947 (9th Cir. 2002); see als ...
From Ramirez v. Pasternak, 2011 U.S. App. LEXIS 443 (9th Cir. Jan. 7, 2011): *** Pasternak was entitled to absolute quasi-judicial immunity for actions undertaken in his capacity as receiver that were “functionally comparable to those of judges.” Curry v.…
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$3.4 Million Inherent Power Sanction Upheld by Eleventh Circuit — Covering Not only Attorneys’ Fees but also an Incidental Settlement and Costs in Defeating a Third Party’s Motion All Due to Bad Faith Conduct

From Wachovia Bank v. Tien, 2010 U.S. App. LEXIS 26089 (11th Cir. Dec. 22, 2010): Henry Tien appeals pro se from the partial final judgment in an interpleader action, 28 U.S.C. § 1335, which imposed on him approximately $3.4 million in sanctions. He claims that the district court abused its discretion in exercising its inherent power t ...
From Wachovia Bank v. Tien, 2010 U.S. App. LEXIS 26089 (11th Cir. Dec. 22, 2010): Henry Tien appeals pro se from the partial final judgment in an interpleader action, 28 U.S.C. § 1335, which imposed on him approximately $3.4 million…
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Authentication of Google Earth — MapQuest / Computer Satellite Imaging System / Computer-Generated Map

From Commonwealth v. Suarez-Irizzary, 2010 Pa. Dist. & Cnty. Dec. LEXIS 380 (Ct. Com. Pl. Aug. 6, 2010): As technology increases, the law must keep pace. When maps were first created, they represented a cartographer's "best estimate" of where things were located. Since then, measuring wheels, odometers, airplane photography and now global ...
From Commonwealth v. Suarez-Irizzary, 2010 Pa. Dist. & Cnty. Dec. LEXIS 380 (Ct. Com. Pl. Aug. 6, 2010): As technology increases, the law must keep pace. When maps were first created, they represented a cartographer’s “best estimate” of where things…
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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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