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

Fed.R.App.P. 38 and Fed.R.Civ.P. 11 — Request for Sanctions in Appellate Brief Does Not Satisfy Motion Requirements

From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or belief that her "factual contentions have evidentiary support or . . . will likely have evidentia ...
From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010): ***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or…
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RICO — PSLRA Bar — Investment in LLC as Part of Tax-Avoidance Strategy = “Investment Contract” Triggering PSLRA Bar

From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of offsetting digital options. [Footnote 1] Digital options are option contra ...
From Affco Invest. 2001 LLC v. Proskauer Rose LLP, 2010 U.S. App. LEXIS 22105 (5th Cir. Oct. 27, 2010): This case involves a sophisticated income tax avoidance strategy in which taxpayers attempted to claim tax losses through a mechanism of…
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The Defense of “Impracticability in Commercial Transactions” under Delaware Law (Interposed as a Defense to Loan Repayment Based on the Financial Meltdown)

From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of "Great Spirit Ventures, LLC," a limited liability company organized in Delaware in 2004 for the purpose of acq ...
From Headway Invest. Partners II, LP v. A.M. Todd Group, 2010 U.S. Dist. LEXIS 107178 (W.D. Mich. Oct. 6, 2010): [T]hree parties — Headway Investment Partners, Blue Orion Limited, and AM Todd Group — are the sole members of “Great…
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Breadth of Judicial Immunity from § 1983 Actions

From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court "has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities." [Footnote 7. Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct ...
From Green v. Mallia, 2010 U.S. App. LEXIS 22775 (5th Cir. Nov. 1, 2010): The Supreme Court “has consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in…
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Settlement Pending Appeal Moots All Claims Unless Settling Party (Here, Class Representative) Retains a Personal Stake in the Case — Good Quote about Mootness

From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): "Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty, ...
From Sanford v. Memberworks, Inc., 2010 U.S. App. LEXIS 22601 (9th Cir. Oct. 25, 2010): “Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing)…
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Alleged Legal Malpractice Is Not a Sufficient Ground for Reconsideration under Rule 60(b)

From Aponte v. City of N.Y. Dep’t of Corrections, 377 Fed. Appx. 99 (2d Cir. 2010): Rule 60(b)(2) provides, in relevant part, that a motion for relief from a judgment or order may be granted based on "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b ...
From Aponte v. City of N.Y. Dep’t of Corrections, 377 Fed. Appx. 99 (2d Cir. 2010): Rule 60(b)(2) provides, in relevant part, that a motion for relief from a judgment or order may be granted based on “newly discovered evidence…
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30(b)(6) Deposition Not Limited to Topics in Notice (Caselaw Split) — Professional Videographer Unnecessary Where Certified Stenographer Is Present, If Video Complies with Rule 30(b)(5)

From Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 114961 (N.D. Iowa Oct. 28, 2010): [Scope of 30(b)(6) Deposition] The deposition of Nancy Yasso was taken in accordance with Federal Rule of Civil Procedure 30(b)(6), pursuant to a first amended notice served on AGLIC. In his notice, Billard stated that he w ...
From Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 114961 (N.D. Iowa Oct. 28, 2010): [Scope of 30(b)(6) Deposition] The deposition of Nancy Yasso was taken in accordance with Federal Rule of Civil Procedure 30(b)(6), pursuant to…
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Sanctions — § 1927 Standards — Third Circuit

From In re Beers, 2010 U.S. App. LEXIS 22475 (3d Cir. Oct. 29, 2010): Beers contends that the District Court erred in concluding that the legal standard for 28 U.S.C. § 1927 sanctions includes a required element of bad faith. We find no such error. Both the District Court and the Bankruptcy Court thoroughly reviewed the applicable law ...
From In re Beers, 2010 U.S. App. LEXIS 22475 (3d Cir. Oct. 29, 2010): Beers contends that the District Court erred in concluding that the legal standard for 28 U.S.C. § 1927 sanctions includes a required element of bad faith.…
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Even After Hall Street, Court May Decline to Enforce Arbitration Award on Grounds of Public Policy

From Shaw Constructors, Inc. v. HPD, LLC, 2010 U.S. Dist. LEXIS 114598 (E.D. La. Oct. 25, 2010): In 2008, the Supreme Court decided Hall Street Associates v. Mattel, Inc., in which it held that the statutory grounds contained in the FAA are the exclusive means by which an arbitral award may be vacated. 552 U.S. at 584. The Court d ...
From Shaw Constructors, Inc. v. HPD, LLC, 2010 U.S. Dist. LEXIS 114598 (E.D. La. Oct. 25, 2010): In 2008, the Supreme Court decided Hall Street Associates v. Mattel, Inc., in which it held that the statutory grounds contained in the…
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Plaintiff’s PSLRA Notice of Pendency of Class Action — Which Must Identify “Claims Asserted” — Must List All Federal Securities, but Not All State Law, Claims

From Poptech, LP v. Stewardship Inv. Advisors, LLC, 2010 U.S. Dist. LEXIS 114711 (D. Conn. Oct. 28, 2010): Currently pending before the Court is Plaintiff Poptech, LP's ("Poptech's") Motion for Appointment as Lead Plaintiff and to Approve Its Selection of Lead Counsel . . . . In the motion, Poptech seeks to be appointed as co-Lead Plainti ...
From Poptech, LP v. Stewardship Inv. Advisors, LLC, 2010 U.S. Dist. LEXIS 114711 (D. Conn. Oct. 28, 2010): Currently pending before the Court is Plaintiff Poptech, LP’s (“Poptech’s”) Motion for Appointment as Lead Plaintiff and to Approve Its Selection 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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