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

PSLRA Sanctions — Statute of Limitations Dismissal Is a “Final Adjudication” Triggering Rule 11 Inquiry (Standing Dismissal, Maybe Not) — Declining Jurisdiction over State Law Claims Irrelevant to “Final Adjudication” Trigger

From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that "[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney ...
From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that “[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall…
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The One-Year Limit on Removal in 28 U.S.C. § 1446(b) Is Not Subject to an Equitable Exception — Case Law Split

From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, "a notice of removal may be filed within thirty days after the receipt...of a copy of an amended pleading, motion, order or other paper" that alerts the defendant that the action is removable. [28 U.S.C. § 144 ...
From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, “a notice of removal may be filed within thirty days after the receipt…of a copy of…
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Defendants Who Were Aware of Allegedly Dangerous Condition But Had No Control over It Cannot be Subject to Adverse Inference for Failing to Document or Preserve Scene

From Willis v. Indian Harbor SS Co., 790 N.W.2d 177 (Minn. App. 2010): On August 27, 2004, while working as a crewman of the vessel Joseph L. Block, Willis was injured on a dock in the Duluth harbor owned by respondent Duluth, Missabe & Iron Range Railway Company (DM&IR). Willis was handling one of the Block's mooring lines used to secu ...
From Willis v. Indian Harbor SS Co., 790 N.W.2d 177 (Minn. App. 2010): On August 27, 2004, while working as a crewman of the vessel Joseph L. Block, Willis was injured on a dock in the Duluth harbor owned by…
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Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) are well-settled. In determining whether a complaint is sufficient to withsta ...
From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion…
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Refusal to Grant Attorneys’ Fees as Inherent Power Sanction Upheld Even Though Intentional Spoliation May Have Been Found by Jury

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that the defendants misappropriated its trade secrets and engaged in unfair competition because t ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that…
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Testimony from Recipient of Email Suffices to Authenticate It, As Does Affidavit

From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 "is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean Aff., ¶ 13 (Docket No. 448, Att. 1). Plaintiffs argue that Exhibit 10 was (1) sent to, among others, Plaintiff Chris Frye who au ...
From Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho Dec. 14, 2010): Exhibit 10 “is a true and correct copy of an email from Aaron Wernli dated March 21, 2006. See McLean…
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Duplicative Federal Action May be Dismissed Sua Sponte Pursuant to Rule 41(b)

From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case -- Case No. EDCV 10-950-DSF (MAN) (the "950 Action") -- plaintiffs filed a complaint that is essentially identical to the instant Complaint. The 950 Action named the same two plaintiffs (Mueller and Latham) ...
From Latham Orthopedics Med. Group v. U.S.A. Corp., 2010 U.S. Dist. LEXIS 122370 (C.D. Cal. Nov. 2, 2010): In an earlier-filed case — Case No. EDCV 10-950-DSF (MAN) (the “950 Action”) — plaintiffs filed a complaint that is essentially identical…
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Organization May Not Call Its Own 30(b)(6) Witness to Testify at Trial to Matters Outside His/Her Personal Knowledge

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness's testimony to matters that are within his or her personal knowledge. Union Pump argues that Bixler [Union Pump’s 30(b)(6) deponent] was permitted to testify to matters that, alt ...
From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Federal Rule of Evidence 602 limits the scope of a witness’s testimony to matters that are within his or her personal knowledge.…
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RICO — If Plaintiff Does Not Rely on Mail Fraud Predicate, Third Party Reliance May Be Essential to Prove Causation

From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail and wire fraud by deliberately misrepresenting the drug's safety and efficacy. Plaintiffs c ...
From UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (class certification decision): The putative class of TPPs [third-party payors] alleges that in the course of promoting off-label prescriptions of Zyprexa, Lilly engaged in mail…
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Attorneys’ Fees under the Federal Arbitration Act for Prevailing over Unsuccessful Attack on Arbitration Award

From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. ("Petitioner" or "Westech") filed its Notice of Application and Application to Confirm Arbitration Award on June 4, 2009. Westech and Respondent Cauchos Industriales ...
From Western Tech. Servs. Int’l v. Cauchous Indus., S.A., 2010 U.S. Dist. LEXIS 121269 (N.D. Tex. Nov. 16, 2010): Petitioner Western Technology Services International, Inc. (“Petitioner” or “Westech”) filed its Notice of Application and Application to Confirm Arbitration Award on…
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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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