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

Shifting Burdens on Summary Judgment

From In re Oracle Corp. Secs. Litig., 2010 U.S. App. LEXIS 23531 (9th Cir. Nov. 16, 2010): We are mindful of the shifting burden of proof governing motions for summary judgment under Federal Rule of Civil Procedure 56. The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp ...
From In re Oracle Corp. Secs. Litig., 2010 U.S. App. LEXIS 23531 (9th Cir. Nov. 16, 2010): We are mindful of the shifting burden of proof governing motions for summary judgment under Federal Rule of Civil Procedure 56. The moving…
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Because a State Is Not a Citizen for Diversity Purposes, Its Presence as a Party Destroys Complete Diversity — Caselaw Split

From Hood v. AstraZeneca Pharm., LP, 2010 U.S. Dist. LEXIS 107411 (N.D. Miss. Oct. 7, 2010): ***Congress has not empowered the federal courts to exercise diversity jurisdiction over the states. That is, it is beyond peradventure that "a State is not a 'citizen' for purposes of the diversity jurisdiction." Moor v. Alameda Cnty., ...
From Hood v. AstraZeneca Pharm., LP, 2010 U.S. Dist. LEXIS 107411 (N.D. Miss. Oct. 7, 2010): ***Congress has not empowered the federal courts to exercise diversity jurisdiction over the states. That is, it is beyond peradventure that “a State is…
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Derivative Standing Requirements under RICO

From Morrell v. Alfortish, 2010 U.S. Dist. LEXIS 119331 (E.D. La. Nov. 8, 2010): This case arises out of an alleged RICO enterprise operated by executives and board members of the Louisiana Horsemen's Benevolent & Protective Association 1993, Inc. ("LHBPA"). The LHBPA is a non-profit corporation empowered to represent the interests of rac ...
From Morrell v. Alfortish, 2010 U.S. Dist. LEXIS 119331 (E.D. La. Nov. 8, 2010): This case arises out of an alleged RICO enterprise operated by executives and board members of the Louisiana Horsemen’s Benevolent & Protective Association 1993, Inc. (“LHBPA”).…
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Non-Lawyer Parent May Not Proceed Pro Se for Child, but Sole Beneficiary May Proceed Pro Se for Estate that Has No Creditors

From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law by bringing claims on behalf of Mrs. McCurdy's Estate in a pro se capacity. This is a ...
From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010): 2. Motion to Dismiss for Unauthorized Practice of Law Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law…
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Sanctions — Erroneous Position on Issue of First Impression, without More, Is Not Frivolous — Good Quote

From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant's "erroneous interpretation in a case of first impression should not, without more, lead the court to conclude that the plaintiff's claims are frivolous, unreasonable, or without foundation." ...
From Komperda v. Hilton Hawaiian Village, LLC, 2010 U.S. Dist. LEXIS 114079 (D. Hawaii Oct. 25, 2010) (state sanctions provision) : A litigant’s “erroneous interpretation in a case of first impression should not, without more, lead the court to conclude…
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§ 1404(a) Standards — Second Circuit

From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether the action sought to be transferred is one that "might have been brought" in the requested transf ...
From Whitney Lane Holdings, LLC v. Sgambettera & Assocs., PC, 2010 U.S. Dist. LEXIS 114467 (E.D.N.Y. Sept. 8, 2010): To transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-pronged inquiry. *** First, the court asks whether…
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No Adverse Inference from Assertion of Attorney-Client Privilege

From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants' argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the basis that they were entitled to an adverse inference because of the witnesses' invocation of the privilege. ...
From United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008): We also reject defendants’ argument that it was improper for Cherry and Raymond to assert the attorney-client privilege outside the presence of the jury on the…
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Evidentiary Foundation for Introducing English Interpretation of Foreign Language Testimony

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): "Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator." Jack v. Trans World Airlines, Inc., 854 F. ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117347 (C.D. Cal. Oct. 8, 2010): “Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done…
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Spoliation: Destroying Party Bears Burden of Proving Irrelevance of Documents Destroyed During Discovery — 9th Circuit Standards for Default or Dismissal Sanctions

From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu's supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified that "non-essential documents were discarded if they were deemed ...
From Sunrider Corp. v. Bountiful Biotech Corp., 2010 U.S. Dist. LEXIS 117346 (C.D. Cal. Nov. 3, 2010): Perhaps most significantly, Annie Wu’s supplementary declaration admitted that as discovery was pending in September 2009, BHTC destroyed documents. *** Annie Wu testified…
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Stay Pending Appeal of Non-Money Judgment: Factors — Novelty of Issue vs. Likelihood of Reversal (Good Quote)

From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. "In the case of a non-money judgment, whether a stay is warranted under Rule 62(d) depends upon: ...
From Adams Offshore, Ltd. v. Con-Dive, LLC, 2010 U.S. Dist. LEXIS 117337 (S.D.Ala. Nov. 3, 2010): I. Stay Pending Appeal. [Intervening Plaintiff] Blake first moves for a stay pending appeal. *** Such stays are governed by Rule 62. “In the…
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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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