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

Weak Position Not Frivolous Where Magistrate Judge Ordered Discovery on It and Appellate Judge Voted for Oral Argument — Forum Non Conveniens in Maritime Cases

From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services ("CSCS") aboard a cruise ship owned by Costa Crociere ("Costa"). Vesuna's employment contract contained the following choice of law provision: ...
From Vesuna v. CSCS Int’l N.V., 2010 U.S. App. LEXIS 25531 (11th Cir. Dec. 13, 2010): Vesuna, a resident of India, sustained a serious back injury while working for Cruise Ship Catering Services (“CSCS”) aboard a cruise ship owned by…
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Statutory Interpretation on Issues of First Impression — Three-Part Test

From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the "on behalf of" language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo such questions of statutory interpretation, United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008 ...
From Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010): The proper interpretation of the “on behalf of” language in § 1252(g) is a matter of first impression in this circuit (and apparently in all circuits). We review de novo…
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Does Postjudgment Interest on an Attorneys’ Fee Award Run from the Date of the Merits Judgment or the Date of the Quantum Judgment? Circuit Split

From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district court . . . Such interest shall be calculated from the date of the entry of the judgment, at ...
From Fryer v. ASAP Fire & Safety Corp., 2010 U.S. Dist. LEXIS 132613 (D. Mass. Dec. 15, 2010): In pertinent part, section 1961 reads: Interest shall be allowed on any money judgment in a civil case recovered in a district…
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“Arbitrability” vs. Scope of Arbitrators’ Authority — A Word in Use for 500 Years that Appears in Almost No Dictionaries

From Burlington Northern & Santa Fe Railway Co. v. Public Serv. Co. of Okla., 2010 U.S. App. LEXIS 25252 (10th Cir. Dec. 10, 2010): As an initial matter, we must clarify the distinction between arbitrability and the scope of an arbitrator's authority, because different standards of review apply to each. An issue is arbitrable if it ...
From Burlington Northern & Santa Fe Railway Co. v. Public Serv. Co. of Okla., 2010 U.S. App. LEXIS 25252 (10th Cir. Dec. 10, 2010): As an initial matter, we must clarify the distinction between arbitrability and the scope of an…
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Omitting/Misnaming Appellants Not Fatal to Appellate Jurisdiction, Notwithstanding Fed.R.App.P. 3(c), If Real-Parties-in-Interest Are Obvious and Involved

From SEC v. Wealth Mgmt. LLC, 2010 U.S. App. LEXIS 24537 (7th Cir. Dec. 1, 2010): Federal Rule of Appellate Procedure 3 requires a notice of appeal to "specify the party or parties taking the appeal by naming each one in the caption or body of the notice." Fed. R. App. P. 3(c)(1)(A). Rule 3(c)'s specificity requirement exists to give "f ...
From SEC v. Wealth Mgmt. LLC, 2010 U.S. App. LEXIS 24537 (7th Cir. Dec. 1, 2010): Federal Rule of Appellate Procedure 3 requires a notice of appeal to “specify the party or parties taking the appeal by naming each one…
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At-Issue Waiver of Attorney-Client Privilege under Federal and New York Law

From Leviton Mfg. Co. v Greenberg Traurig LLP, 2010 U.S. Dist. LEXIS 128849 (S.D.N.Y. Dec. 6, 2010): Under Second Circuit law, waiver of attorney-client privilege may occur, when a client testifies concerning portions of the attorney-client communication, . . . when a client places the attorney-client relationship ...
From Leviton Mfg. Co. v Greenberg Traurig LLP, 2010 U.S. Dist. LEXIS 128849 (S.D.N.Y. Dec. 6, 2010): Under Second Circuit law, waiver of attorney-client privilege may occur, when a client testifies concerning portions of the attorney-client communication, . . .…
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In a Removed Diversity Case, May a District Court Sever a Non-Diverse Defendant Absent a Finding of Fraudulent Joiner or Misjoinder? Caselaw Split

From Cooke-Bates v. Bayer Corp., 2010 U.S. Dist. LEXIS 121255 (E.D. Va. Nov. 15, 2010) (on motion for certification under § 1292(b)): As a general matter, Rule 21 permits the Court to sever a party from a case in order to achieve complete diversity and establish proper jurisdiction of a civil action. Newman-Green, Inc. v. Alfonzo-Lar ...
From Cooke-Bates v. Bayer Corp., 2010 U.S. Dist. LEXIS 121255 (E.D. Va. Nov. 15, 2010) (on motion for certification under § 1292(b)): As a general matter, Rule 21 permits the Court to sever a party from a case in order…
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Party Collaboration with Expert OK — Expert Opinion Avoiding State of Mind — Contact with Ex-Employees of Party — Conduct Outside Limitations Period May Be Relevant — Admissions of Corporate Employees & Res Gestae

From Arista Records LLC v. Lime Group LLC, 715 F.Supp.2d 481 (S.D.N.Y. 2010): [T]here is no support for the contention that Dr. Waterman's study is flawed because of his collaboration with Plaintiffs. Plaintiffs assisted Dr. Waterman in a variety of ways, including obtaining the sample of files, categorizing the files in the sample, an ...
From Arista Records LLC v. Lime Group LLC, 715 F.Supp.2d 481 (S.D.N.Y. 2010): [T]here is no support for the contention that Dr. Waterman’s study is flawed because of his collaboration with Plaintiffs. Plaintiffs assisted Dr. Waterman in a variety of…
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Realleging Dismissed Claim without Curing Deficiency as Violating Improper-Purpose Clause of Rule 11

From Corrigan v. Dale, 2010 U.S. App. LEXIS 22149 (9th Cir. Oct. 19, 2010): The district court properly granted Hille's and Scudder's motion for Rule 11 sanctions because Corrigan's filing of successive complaints based on previously-rejected propositions of law constituted harassment. See Buster v. Greisen, 104 F.3d 1186, 1189-90 ...
From Corrigan v. Dale, 2010 U.S. App. LEXIS 22149 (9th Cir. Oct. 19, 2010): The district court properly granted Hille’s and Scudder’s motion for Rule 11 sanctions because Corrigan’s filing of successive complaints based on previously-rejected propositions of law constituted…
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Shotgun Complaint Fails to Satisfy Rule 8(a)(2) (Good Quote) — Repeated Failure to Cure Complaint = Dismissal with Prejudice — Limits on Liberal Construction of Pro Se Pleading — Carvel Fortune Melted Away

From Carvel v. Godley, 2010 U.S. App. LEXIS 24763 (11th Cir. Dec. 2, 2010): Pamela Carvel, proceeding pro se, appeals the district court's dismissal of her second amended complaint with prejudice and its order taxing costs. Carvel advances numerous claims against Betty Godley for depriving Carvel and her deceased aunt, Agnes Carv ...
From Carvel v. Godley, 2010 U.S. App. LEXIS 24763 (11th Cir. Dec. 2, 2010): Pamela Carvel, proceeding pro se, appeals the district court’s dismissal of her second amended complaint with prejudice and its order taxing costs. Carvel advances numerous claims…
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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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