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

Good Bye to Docket Numbers

From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Court papers formerly were cited as "Paper No." or "Doc. No." The recently-published Nineteenth Edition of The Bluebook provides that electronically-filed documents should be cited as "ECF No."
From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Court papers formerly were cited as “Paper No.” or “Doc. No.” The recently-published Nineteenth Edition of The Bluebook provides that electronically-filed documents…
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RICO Is Not Extraterritorial — Part 2

From Norex Petroleum Ltd. v. Access Indus., 2010 U.S. App. LEXIS 19982 (2d Cir. Sept. 28, 2010): The issue before us is whether a United States federal court can properly hear a claim under the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq., arising from allegations of a conspiracy which primarily i ...
From Norex Petroleum Ltd. v. Access Indus., 2010 U.S. App. LEXIS 19982 (2d Cir. Sept. 28, 2010): The issue before us is whether a United States federal court can properly hear a claim under the Racketeer Influenced and Corrupt Organization…
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Making Rule 37(b)(2) Contempt Sanction Contingent on Non-Payment of Attorneys’ Fees Renders It Civil (Because Purgeable) and Not Criminal, Even If the Sanction Is Imprisonment — No Case-Ending Sanctions Absent Prejudice

From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Through four years of discovery, during which Defendant Mark Pappas, President of Defendant CPI, had actual knowledge of his duty to preserve relevant information, Defendants delayed their electronically stored information ("ESI") produ ...
From Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010): Through four years of discovery, during which Defendant Mark Pappas, President of Defendant CPI, had actual knowledge of his duty to preserve…
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District Court Lacks Inherent Power to Sanction Counsel for Conduct During Arbitration Even If Court Ordered the Parties to Arbitration (Note: Not Court-Annexed Arbitration)

The Court ordered the parties to arbitration pursuant to contract, on defendant’s motion, in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2010 U.S. App. LEXIS 19072 (5th Cir. Sept. 13, 2010): During arbitration, [Attorney] Camina advised [Defendant] New Century on various discovery matters. In September 2004, the dis ...
The Court ordered the parties to arbitration pursuant to contract, on defendant’s motion, in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2010 U.S. App. LEXIS 19072 (5th Cir. Sept. 13, 2010): During arbitration, [Attorney] Camina advised [Defendant] New…
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“No Actions” Clause Barring Suit and Requiring Indemnification of Defense Costs If Suit Is Filed Does Not Extend to Attorneys’ Fees Incurred in Bringing Counterclaim

From McKissick v. Gemstar-TV Guide Int’l, Inc., 2010 U.S. App. LEXIS 18753 (10th Cir. Sept. 8, 2010): The *** "No Actions Clause" [provides]: 17. No Actions. Employee represents and warrants that she has not filed any complaints or charges or lawsuits against the Company with any governmental agency or any court, ...
From McKissick v. Gemstar-TV Guide Int’l, Inc., 2010 U.S. App. LEXIS 18753 (10th Cir. Sept. 8, 2010): The *** “No Actions Clause” [provides]: 17. No Actions. Employee represents and warrants that she has not filed any complaints or charges or…
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Relaxed Timeliness Requirements for Rule 11 Motions under the PSLRA

From In re Star Gas Secs. Litig., 2010 U.S. Dist. LEXIS 103475 (D. Conn. Sept. 30, 2010): Plaintiffs contend that Defendants' motion was untimely filed on April 3, 2007, because judgment entered against Plaintiffs on August 23, 2006. Although PSLRA Section 78u-4(c), which mandates that a court conduct a inquiry under Rule 11(b) "upon fina ...
From In re Star Gas Secs. Litig., 2010 U.S. Dist. LEXIS 103475 (D. Conn. Sept. 30, 2010): Plaintiffs contend that Defendants’ motion was untimely filed on April 3, 2007, because judgment entered against Plaintiffs on August 23, 2006. Although PSLRA…
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May a Federal Court Enter Summary Judgment on an Issue That Is Less Than a Full “Claim”? — Caselaw Split as to Meaning of “Claim”

Hamblin v. British Airways PLC, 2010 U.S. Dist. LEXIS 67401 (E.D.N.Y. June 15, 2010): Some courts have limited the availability of summary judgment motions to foreclosure of specific claims, not remedies. For example, in In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 517 F. Supp. 2d 662, 666 (S.D.N.Y. 2007) ("MTBE"), ...
Hamblin v. British Airways PLC, 2010 U.S. Dist. LEXIS 67401 (E.D.N.Y. June 15, 2010): Some courts have limited the availability of summary judgment motions to foreclosure of specific claims, not remedies. For example, in In re Methyl Tertiary Butyl Ether…
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Prelitigation Email from Counsel Admissible against Client as Admission

From Cleveland Regional Med. Ctr., LP v. Celtic Props., L.C., 2010 Tex. App. LEXIS 7942 (Tex. App. Sept. 30, 2010): In issue three, appellants assert that the trial court erred by improperly excluding an alleged admission by Celtic that the Master Lease was in "full force and effect." Specifically, appellants argue that the trial court er ...
From Cleveland Regional Med. Ctr., LP v. Celtic Props., L.C., 2010 Tex. App. LEXIS 7942 (Tex. App. Sept. 30, 2010): In issue three, appellants assert that the trial court erred by improperly excluding an alleged admission by Celtic that the…
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RICO Has No Extraterritorial Reach

From Cedeño v. Intech Group, Inc., 2010 U.S. Dist. LEXIS 88026 (S.D.N.Y. Aug. 24, 2010): This civil action brought under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, seeks "damages arising out of a wide-ranging money laundering scheme that utilized New York-based U.S. banks to hold, move and ...
From Cedeño v. Intech Group, Inc., 2010 U.S. Dist. LEXIS 88026 (S.D.N.Y. Aug. 24, 2010): This civil action brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, seeks “damages arising out of a wide-ranging money…
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Only an Original Judgment That Is Registered Pursuant to 28 U.S.C. § 1963 May be Re-Registered in Other Jurisdictions — A Judgment Created by Registration Cannot — Caselaw Split

From De Leon v. Marcos, 2010 U.S. Dist. LEXIS 100644 (D. Colo. Sept. 23, 2010): The operative facts for purposes of the instant motion are undisputed. The Plaintiff is the named representative of a class that holds a judgment2 of almost $2 billion against former Philippines President Ferdinand Marcos. The judgment was entered on February ...
From De Leon v. Marcos, 2010 U.S. Dist. LEXIS 100644 (D. Colo. Sept. 23, 2010): The operative facts for purposes of the instant motion are undisputed. The Plaintiff is the named representative of a class that holds a judgment2 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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