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

Filing Suit in a Proper but Inconvenient Forum Not Sanctionable Absent Improper Purpose — Location of Plaintiff’s Counsel as a Legitimate Purpose for Original Choice of Venue

From HR US LLC v. Mizco Int’l, Inc., 2010 U.S. Dist. LEXIS 103123 (E.D.N.Y. Sept. 28, 2010) (defense seeking attorney's fees arguing that the case is "exceptional" within the meaning of 35 U.S.C. § 285 but relying on sanctions precedents): Plaintiff did not engage in litigation misconduct by filing in a proper, but ultimately inconven ...
From HR US LLC v. Mizco Int’l, Inc., 2010 U.S. Dist. LEXIS 103123 (E.D.N.Y. Sept. 28, 2010) (defense seeking attorney’s fees arguing that the case is “exceptional” within the meaning of 35 U.S.C. § 285 but relying on sanctions precedents):…
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Deposition of Adverse Counsel — Second Circuit “Flexible Approach” / Standards

From In re Application of Chevron Corp., 2010 U.S. Dist. LEXIS 117679 (S.D.N.Y. Nov. 10, 2010): II. Deposition of Adverse Counsel "Courts have been . . . concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawye ...
From In re Application of Chevron Corp., 2010 U.S. Dist. LEXIS 117679 (S.D.N.Y. Nov. 10, 2010): II. Deposition of Adverse Counsel “Courts have been . . . concerned about the burdens imposed on the adversary process when lawyers themselves have…
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Amended Complaint Resets Rule 11 Clock — Judge’s Warning to Heed Rule 11 Does Not Trump Safe Harbor — Nor Does Ambiguous Judicial Request to Delay 2nd Sanctions Motion — No Sanctions for “Merely Frustrating Conduct” (Good Quote)

From Lawrence v. Richman Group of CT LLC, 620 F.3d 153 (2d Cir. 2010): In an order dated March 4, 2005, the district court dismissed Lawrence's first amended complaint in this case, finding that it failed to plead a contract that was legal and enforceable. Nevertheless, based on counsel's representation that this defect could be cured b ...
From Lawrence v. Richman Group of CT LLC, 620 F.3d 153 (2d Cir. 2010): In an order dated March 4, 2005, the district court dismissed Lawrence’s first amended complaint in this case, finding that it failed to plead a contract…
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The Attorney-Client Privilege in Congressional Investigations

Download associated file: Attorney Client Privilege in Congressional Investigations.pdf  The American College of Trial Lawyers has just published an excellent white paper on the Attorney-Client Privilege in Congressional Investigations. It can be found at the link above ...
Download associated file: Attorney Client Privilege in Congressional Investigations.pdf  The American College of Trial Lawyers has just published an excellent white paper on the Attorney-Client Privilege in Congressional Investigations. It can be found at the link above. This issue…
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Due Process Not Violated by Application of Statute in First Impression Circumstances If Prior Decisions Gave Reasonable Warning of How Law Would be Applied

From Gollehon v. Mahoney, 2010 U.S. App. LEXIS 23944 (9th Cir. Nov. 22, 2010): As an initial matter, we address Gollehon's contention that he lacked fair notice because "no decision of the Montana Supreme Court (up until [his] case) even considered whether an offender convicted of deliberate homicide by accountability could be sentenced t ...
From Gollehon v. Mahoney, 2010 U.S. App. LEXIS 23944 (9th Cir. Nov. 22, 2010): As an initial matter, we address Gollehon’s contention that he lacked fair notice because “no decision of the Montana Supreme Court (up until [his] case) even…
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Issuer Is “Customer” of Underwriter for Purposes of Compelling FINRA Arbitration — Under FAA, Court Refusing to Enjoin Arbitration May Not Compel It in Another District

From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court's power to enjoin that arbitration derives from the Federal Arbitration Act ("FAA"). Section 2 of th ...
From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court’s power…
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Daubert — Strict Interpretation — Good Quotes — Criminal vs. Civil Daubert

From United States v. Hebshie, 2010 U.S. Dist. LEXIS 120746 (D. Mass. Nov. 15, 2010): Daubert’s extra vigilance is essential for two reasons: First, while opinion testimony is generally excluded, expert witnesses are permitted to opine on the basis of evidence not given to the jury. See Fed. R. Evid. 703. Second, as I have prev ...
From United States v. Hebshie, 2010 U.S. Dist. LEXIS 120746 (D. Mass. Nov. 15, 2010): Daubert’s extra vigilance is essential for two reasons: First, while opinion testimony is generally excluded, expert witnesses are permitted to opine on the basis of…
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Daubert — Liberal Interpretation — Good Quotes

From McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092 (D. Or. 2010): Rule 702 permits expert testimony that is helpful to the trier of fact, reliable, and relevant. To that end, Daubert was intended to exclude "junk science" — unsupported testimony or evidence cloaked in the credentials of a testifying expert — that would confu ...
From McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092 (D. Or. 2010): Rule 702 permits expert testimony that is helpful to the trier of fact, reliable, and relevant. To that end, Daubert was intended to exclude “junk science” —…
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Issuer Is Customer of Underwriter for Purposes of Compelling FINRA Arbitration — Under FAA, Court Refusing to Enjoin Arbitration May Not Compel It in Another District

From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court's power to enjoin that arbitration derives from the Federal Arbitration Act ("FAA"). Section 2 of th ...
From JPMorgan Secs. Inc. v. La. Citizens Prop. Ins. Corp., 712 F. Supp. 2d 70 (S.D.N.Y. 2010): JP Morgan and Bear Stearns ask this Court to grant a preliminary injunction enjoining its pending FINRA arbitration with Citizens. This Court’s power…
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Federal Officer Removal — Requirements — Private Entity Whose Employees Are “Federal Officers” for Purposes of Removal May Not Itself Remove under §1442

From West v. A&S Helicopters, 2010 U.S. Dist. LEXIS 120948 (W.D. Mo. Nov. 15, 2010): B. Federal Officer Removal Under 28 U.S.C. § 1442 The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows removal to a federal forum of any civil or criminal action against "[t]he United States or any agency thereof or any officer ...
From West v. A&S Helicopters, 2010 U.S. Dist. LEXIS 120948 (W.D. Mo. Nov. 15, 2010): B. Federal Officer Removal Under 28 U.S.C. § 1442 The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows removal to a federal forum of…
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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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