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

Factors to Determine Whether an Economic Entity Is Entitled to Tribal Sovereign Immunity

From Breakthrough Management Group, Inc. v. Chukchansi Gold Casino And Resort, 2010 U.S. App. LEXIS 26210 (10th Cir. Dec. 27, 2010): At this time there is no need to define the precise boundaries of the appropriate test to determine if a tribe's economic entity qualifies as a subordinate economic entity entitled to share in a t ...
From Breakthrough Management Group, Inc. v. Chukchansi Gold Casino And Resort, 2010 U.S. App. LEXIS 26210 (10th Cir. Dec. 27, 2010): At this time there is no need to define the precise boundaries of the appropriate test to determine if…
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RICO — Investor’s Claim Arising out of Illegal Tax Shelter Not Barred by PSLRA, but Proximate Cause Lacking Because the Government was the Directly Injured Party and Did, in Fact, Sue

From Rezner v. Bayeriusche Hypo-Und Vereinsbank, AG, 2010 U.S. App. LEXIS 26272 (9th Cir. Dec. 28, 2010): It is undisputed that John Rezner participated in a financial transaction called Custom Adjustable Rate Debt Structure ("CARDS"), designed to avoid the payment of federal income taxes.*** CARDS loan transactions are designed to gene ...
From Rezner v. Bayeriusche Hypo-Und Vereinsbank, AG, 2010 U.S. App. LEXIS 26272 (9th Cir. Dec. 28, 2010): It is undisputed that John Rezner participated in a financial transaction called Custom Adjustable Rate Debt Structure (“CARDS”), designed to avoid the payment…
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Does Inherent Power Extend to Non-Parties Who Have Not Violated a Court Order? No Sanctions Imposed on Court-Appointed Monitor Who Engaged in Improper Communications with the Principal of a Party

From U.S. v. City of Detroit, 2010 U.S. Dist. LEXIS 134852 (E.D. Mich. Dec. 21, 2010): This civil rights action — now in its seventh year — involves an ongoing effort to enforce and implement two Consent Judgments that were agreed upon by the City of Detroit ("City") and the Department of Justice ("DOJ"). These Consent Judgments aros ...
From U.S. v. City of Detroit, 2010 U.S. Dist. LEXIS 134852 (E.D. Mich. Dec. 21, 2010): This civil rights action — now in its seventh year — involves an ongoing effort to enforce and implement two Consent Judgments that were…
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Spoliation Rule?

Today, I attended and moderated a panel at a meeting of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference. The topic under discussion was a preservation (i.e., spoliation) rule for inclusion in the Federal Rules of Civil Procedure. Judge Mark Kravitz (D. Conn.), Chair of the Advisory Committee on the Federal Rules o ...
Today, I attended and moderated a panel at a meeting of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference. The topic under discussion was a preservation (i.e., spoliation) rule for inclusion in the…
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Court’s Simple Observation that Counsel Has Engaged in Conduct Violative of Rule 11, without More, Does Not Constitute a Sanction and Does Not Require Prior Notice

From M.B. v. Eastern Regional High School Dist., 386 Fed. Appx. 186 (3d Cir. 2010): M.G. claims the District Court erred by sanctioning Epstein without first providing him with notice and a reasonable opportunity to respond. See Fed. R. Civ. P. 11(c)(1). But the District Court did not impose Rule 11 sanctions on Epstein. Rather, the Cou ...
From M.B. v. Eastern Regional High School Dist., 386 Fed. Appx. 186 (3d Cir. 2010): M.G. claims the District Court erred by sanctioning Epstein without first providing him with notice and a reasonable opportunity to respond. See Fed. R. Civ.…
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Defendant Cannot Moot Class Action by Making a Rule 68 Offer of Judgment to the Named Plaintiff before Class Certification Motion Is Filed — Case Law Split

From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch's Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of judgment under Rule 68 two days after the suit is removed to federal court. *** At issue is "[t]he i ...
From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch’s Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of…
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§ 1927 Sanctions Imposed on Counsel for 868-Entry Deposition Errata Sheet — Case Law Split on Propriety of Substantive Deposition Errata — § 1927 Award May Include Costs Incurred on Sanctions Motion (Circuit Split) — Good Quotes

From Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010) (Note: This is a 2-1 decision with the 1 being a concurrence in part and Judge Tflojat dissenting): No one's memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three ...
From Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010) (Note: This is a 2-1 decision with the 1 being a concurrence in part and Judge Tflojat dissenting): No one’s memory is perfect. People forget…
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FTC Suit for Unfair or Deceptive Acts under 15 U.S.C. § 45(a)(1) Is Subject to Rule 9(b) — Case Law Split

From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits "unfair or deceptive acts or practices in or affecting commerce." 15 U.S.C. § 45(a)(1). In resolving the FTC's motion to dismiss, the central issue is whether the FTC's claim that the Vakils engaged in "unfa ...
From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). In resolving the…
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The 10 Most Important Developments in Civil Practice: 2000-2010

1. Federal Rule of Evidence 502 (9/19/2008) 2. Twiqbal (2007 / 2009) 3. Expert Discovery Rules Amendments (12/1/2010) 4. The Rise of Spoliation 5. Amendments to Evidence Rules 701-703 (12/1/2000) 6. FRAP. 32.1 (12/1/2006) 7. 2000 ...
1. Federal Rule of Evidence 502 (9/19/2008) 2. Twiqbal (2007 / 2009) 3. Expert Discovery Rules Amendments (12/1/2010) 4. The Rise of Spoliation 5. Amendments to Evidence Rules 701-703 (12/1/2000) 6. FRAP. 32.1 (12/1/2006) 7. 2000 Disclosure and Discovery-Limits Amendments…
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Arbitration — Presumption that Duty to Arbitrate Survives Contract — Ambiguity Resolved in Favor of Arbitrating

From West Liberty Foods, LLC v. Moroni Feed Co., 2010 U.S. Dist. LEXIS 125137 (S.D. Iowa Oct. 20, 2010): The issue in this case is not whether the parties agreed to arbitrate in the first place; rather, the issue is whether the parties agreed that the obligation to arbitrate would end upon termination of the marketing agreement. "Even i ...
From West Liberty Foods, LLC v. Moroni Feed Co., 2010 U.S. Dist. LEXIS 125137 (S.D. Iowa Oct. 20, 2010): The issue in this case is not whether the parties agreed to arbitrate in the first place; rather, the issue is…
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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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