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

What Are Discrete Subparts of Interrogatories? — Boilerplate Objections — Promise to Produce at Unspecified Time Inadequate — Res Judicata No Defense to Discovery — Subpoena May Not be Used to Compel Party to Produce Objected-to Documents

From Mezu v. Morgan St. Univ., 2010 U.S. Dist. LEXIS 113817 (D. Md. Oct. 22, 2010): Fed. R. Civ. P. 33(a)(1) provides that "a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." *** Probably the best test of whether subsequent questions, within a ...
From Mezu v. Morgan St. Univ., 2010 U.S. Dist. LEXIS 113817 (D. Md. Oct. 22, 2010): Fed. R. Civ. P. 33(a)(1) provides that “a party may serve on any other party no more than 25 written interrogatories, including all discrete…
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Joint Defense (Common Interest) Agreement Need Not be in Writing and Failed Attempt to Draft Writing Does Not Defeat Assertion of the Privilege

From Marianist Province of U.S., Inc. v. Century Indem. Co., 2010 U.S. Dist. LEXIS 110888 (D. Colo. Oct. 5, 2010): In Colorado, the joint defense (or common interest) doctrine is an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties. Black v. Southwester ...
From Marianist Province of U.S., Inc. v. Century Indem. Co., 2010 U.S. Dist. LEXIS 110888 (D. Colo. Oct. 5, 2010): In Colorado, the joint defense (or common interest) doctrine is an exception to the general rule that the attorney-client privilege…
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No Cause of Action for Sanctions under New York State Law

From Calabro & Assocs. v. Katz, 26 Misc. 3d 137A, 907 N.Y.S.2d 99 (1st Dept. 2010): The counterclaim for sanctions under 22 NYCRR 130-1.1 should have been dismissed, since no independent cause of action for such sanctions exists (see Siegel, NY Practice § 414A [4th ed]; see also 22 NYCRR 130-1.1[d]). In any event, construed as a motion ...
From Calabro & Assocs. v. Katz, 26 Misc. 3d 137A, 907 N.Y.S.2d 99 (1st Dept. 2010): The counterclaim for sanctions under 22 NYCRR 130-1.1 should have been dismissed, since no independent cause of action for such sanctions exists (see Siegel,…
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§ 1746 Declaration = “Affidavit” within Rule 56 — If Lacking Statutory Language, It Is Inadmissible on Summary Judgment

From Kelly v. U.S. Bank, 2010 U.S. Dist. LEXIS 110127 (D. Or. July 30, 2010): U.S. Bank objects that this declaration is inadmissible because it was unsworn. The court agrees that the declaration is inadmissible.... An affidavit is, by definition, a statement taken under oath. See Black's Law Dictionary 66 (9th ed. 2009) (defining ...
From Kelly v. U.S. Bank, 2010 U.S. Dist. LEXIS 110127 (D. Or. July 30, 2010): U.S. Bank objects that this declaration is inadmissible because it was unsworn. The court agrees that the declaration is inadmissible…. An affidavit is, by definition,…
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Permissible vs. Impermissible Testimony from Legal Experts (Patent Case)

From Bone Care Int’l LLC v. Pentech Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 105118 (N.D. Ill. Oct. 1, 2010): Plaintiffs *** submit that Mr. Sofocleous should be barred from testifying regarding the area in which they concede Mr. Sofocleous has professional experience: patent law. *** The Court agrees that any testimony Mr. ...
From Bone Care Int’l LLC v. Pentech Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 105118 (N.D. Ill. Oct. 1, 2010): Plaintiffs *** submit that Mr. Sofocleous should be barred from testifying regarding the area in which they concede Mr. Sofocleous has…
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Non-Party Sanctioned for Unauthorized Practice of Law in Drafting Complaint for Pro Se Litigant for an Improper Purpose

From Barry v. Heimer, 2010 U.S. App. LEXIS 18858 (9th Cir. Aug. 23, 2010): Rae Heimer, a non-party to the underlying action, appeals pro se from the district court's order sanctioning her under its inherent power to curb abusive litigation practices after dismissing the complaint she prepared for failure to state a claim. *** The d ...
From Barry v. Heimer, 2010 U.S. App. LEXIS 18858 (9th Cir. Aug. 23, 2010): Rae Heimer, a non-party to the underlying action, appeals pro se from the district court’s order sanctioning her under its inherent power to curb abusive litigation…
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When a Claim Can be Supported by Alternate and Independent State or Federal Law Theories, No Federal Jurisdiction Attaches

From Ballesteros v. Charter College, 2010 U.S. Dist. LEXIS 109855 (C.D. Cal. Oct. 4, 2010): The Ninth Circuit has explained that "[w]hen a claim can be supported by alternative and independent theories-one of which is a state law theory and one of which is a federal law theory-federal question jurisdiction does not attach because federal ...
From Ballesteros v. Charter College, 2010 U.S. Dist. LEXIS 109855 (C.D. Cal. Oct. 4, 2010): The Ninth Circuit has explained that “[w]hen a claim can be supported by alternative and independent theories-one of which is a state law theory and…
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Where One of Two Papers Contained a Falsehood but Only One Was Filed in Court and It Was Unclear Which One Was False, Sanctions Denied

From Patel v. United States, 2010 U.S. App. LEXIS 21569 (5th Cir. Oct. 12, 2010): Although the district court determined that the Clinical Director had provided false information in either the declaration or the referral request, it could not determine which document contained the false information. Thus, the district court did not order ...
From Patel v. United States, 2010 U.S. App. LEXIS 21569 (5th Cir. Oct. 12, 2010): Although the district court determined that the Clinical Director had provided false information in either the declaration or the referral request, it could not determine…
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May a Pro Se Litigant File a Motion to Recuse under 28 U.S.C. § 144, Which Requires a Certificate of Counsel of Record? Caselaw Split

From Klayman v. Judicial Watch, Inc., 2010 U.S. Dist. LEXIS 109068 (D.D.C. Oct. 13, 2010): Currently pending before the Court is Plaintiff Larry Klayman's ("Klayman") *** Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman's second attempt to disqualify this Court in this case based on the allegation that ...
From Klayman v. Judicial Watch, Inc., 2010 U.S. Dist. LEXIS 109068 (D.D.C. Oct. 13, 2010): Currently pending before the Court is Plaintiff Larry Klayman’s (“Klayman”) *** Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman’s…
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Request for 60 Days to Respond to TRO = Implied Consent to Extend TRO for the Full Period Requested and Until Court Rules

From City of N.Y. v. Venkataram, 2010 U.S. Dist. LEXIS 109776 (S.D.N.Y. Oct. 5, 2010): On September 21, 2010, this Court issued an Order to Show Cause on plaintiff's motion for a preliminary injunction to prevent defendant Venkataram (or anyone acting on his behalf, in concert with him, or in concert with anyone acting on his behalf) from ...
From City of N.Y. v. Venkataram, 2010 U.S. Dist. LEXIS 109776 (S.D.N.Y. Oct. 5, 2010): On September 21, 2010, this Court issued an Order to Show Cause on plaintiff’s motion for a preliminary injunction to prevent defendant Venkataram (or anyone…
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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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