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

Disqualification in Federal Court Is Determined under Federal Standard, Not State Ethical Rules

From Silicon Graphics, Inc. v. ATI Techs., Inc., 2010 U.S. Dist. LEXIS 107057 (W.D. Wis. Oct. 5, 2010): In recent years, "attorney mobility and firm mergers have increased exponentially." Kirk v. First American Title Insurance Co., 183 Cal. App. 4th 776, 802 (Ct. App. 2010). One consequence of this phenomenon is that a lawyer is ...
From Silicon Graphics, Inc. v. ATI Techs., Inc., 2010 U.S. Dist. LEXIS 107057 (W.D. Wis. Oct. 5, 2010): In recent years, “attorney mobility and firm mergers have increased exponentially.” Kirk v. First American Title Insurance Co., 183 Cal. App. 4th…
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Non-Lawyer’s Draft Report Protected as Work Product but Impressions, Opinions or Conclusions of Non-Lawyers ≠ Core Work Product

From Nelsen v. Geren, 2010 U.S. Dist. LEXIS 89039 (D. Or. Aug. 27, 2010): Carrubba is not an attorney. Nevertheless, Rule 26(b)(3) protects from discovery documents that are prepared in anticipation of litigation by a party or "its representative," which includes individuals other than attorneys. For example, in Fuller v. Che ...
From Nelsen v. Geren, 2010 U.S. Dist. LEXIS 89039 (D. Or. Aug. 27, 2010): Carrubba is not an attorney. Nevertheless, Rule 26(b)(3) protects from discovery documents that are prepared in anticipation of litigation by a party or “its representative,” which…
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Communications Decency Act Immunizes ISP / Host from Liability under State Law for Content of Postings under unless Its System Is Designed to Facilitate Unlawful Acts

From Johnson v. Elizabeth Arden d/b/a ComplaintsBoard.com, 614 F.3d 785 (8th Cir. 2010): A. Communications Decency Act The Johnsons first argue that the district court erroneously dismissed their claims after concluding InMotion is immune under the CDA. The Johnsons contend that 47 U.S.C. § 230(c)(1) and (e)(3) merely p ...
From Johnson v. Elizabeth Arden d/b/a ComplaintsBoard.com, 614 F.3d 785 (8th Cir. 2010): A. Communications Decency Act The Johnsons first argue that the district court erroneously dismissed their claims after concluding InMotion is immune under the CDA. The Johnsons contend…
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Third-Party Consumer Emails Admissible under Residual Exception — Unfair Trade Practices Litigation

From State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2 A.3d (Conn. Sup. Ct. 2010): We also note that it is not clear whether the trial court would conclude that much of the purported hearsay, such as the contents of the consumer complaints, is inadmissible. Compare Federal Trade Commission v. Figgie International, Inc., 99 ...
From State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2 A.3d (Conn. Sup. Ct. 2010): We also note that it is not clear whether the trial court would conclude that much of the purported hearsay, such as the contents…
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Federal Court May Not Generally Sanction a Party with an Injunction against Filing State Court Litigation — Party May Be Held in Contempt for Violating Order Only If It Is Unambiguous

From Lipin v. Sawyer, 2010 U.S. App. LEXIS 21009 (2d Cir. Oct. 12, 2010): Plaintiff Joan C. Lipin, proceeding pro se, appeals from a judgment dismissing her constitutional and statutory claims against defendants and holding her in civil contempt with an attendant $5,000 fine for failure to comply with an August 2008 filing injunction.** ...
From Lipin v. Sawyer, 2010 U.S. App. LEXIS 21009 (2d Cir. Oct. 12, 2010): Plaintiff Joan C. Lipin, proceeding pro se, appeals from a judgment dismissing her constitutional and statutory claims against defendants and holding her in civil contempt with…
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Rule of Unanimity Does Not Apply to National Bank Removal under 12 U.S.C. § 632 — Any Defendant May Remove, Not Just the Bank — Caselaw Split

From CI Int’l Fuels, Ltda. V. Helm Bank, S.A., 707 F. Supp. 2d 1351 (S.D. Fla. 2010): On March 5, 2010, the Plaintiffs moved to remand this action to state court "on an issue of first impression in Florida and the Eleventh Circuit." (Mot. 1). According to the Plaintiffs, the removal is ineffective because Regions failed to comply with ...
From CI Int’l Fuels, Ltda. V. Helm Bank, S.A., 707 F. Supp. 2d 1351 (S.D. Fla. 2010): On March 5, 2010, the Plaintiffs moved to remand this action to state court “on an issue of first impression in Florida and…
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Inherent Power Sanctions for Improper Final Argument

From In re Fosamax Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 105769 (S.D.N.Y. Oct. 4, 2010): The quoted passages from Mr. Douglas' summation demonstrated that he was arguing punitive damages and because of the Court's August 5, 2009 Opinion, he had ample notice that exemplary or punitive damages were not before the jury. Mr. Ross' argum ...
From In re Fosamax Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 105769 (S.D.N.Y. Oct. 4, 2010): The quoted passages from Mr. Douglas’ summation demonstrated that he was arguing punitive damages and because of the Court’s August 5, 2009 Opinion, he…
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Personal Representative of Estate May Sue Attorney of Decedent for Negligent Estate Planning — New York Court of Appeals

From Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010): At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal representative of an estate may maintain a legal malpractice claim for ...
From Estate of Schneider v. Finmann, 15 N.Y.3d 306 (2010): At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We…
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Email / Admissibility Issues on Summary Judgment

From Mike Hooks Dredging Co. v. Eckstein Marine Serv., 2010 U.S. Dist. LEXIS 101724 (E.D. La. Sept. 27, 2010): Eckstein opposes Longman's motion, arguing that a genuine issue of material fact exists as to whether Longman's was a broker or a charterer. *** It argues that an email sent by Longman's related to the litigation admitted that L ...
From Mike Hooks Dredging Co. v. Eckstein Marine Serv., 2010 U.S. Dist. LEXIS 101724 (E.D. La. Sept. 27, 2010): Eckstein opposes Longman’s motion, arguing that a genuine issue of material fact exists as to whether Longman’s was a broker or…
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No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition

From McElgunn v. CUNA Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010): Defendant argues that the court erred in allowing the jury to observe defendant's numerous objections found throughout the designated portions of JoAnn Schonasky's videotaped deposition. Defendant also argues that the jury should not have been allowed to observe the ...
From McElgunn v. CUNA Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010): Defendant argues that the court erred in allowing the jury to observe defendant’s numerous objections found throughout the designated portions of JoAnn Schonasky’s videotaped deposition. Defendant…
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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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