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

Contractual Limitations Period Construed Strictly — Claim for Unearned Premium Is Not a Claim “under” Insurance Policy

From Archway Ins. Servs. v. James River Ins. Co., 2010 U.S. Dist. LEXIS 99708 (E.D. Pa. Sept. 21, 2010): The dispositive question is whether a claim for unearned premiums is a "claim under this policy" as specified in section 4(B). Although this question appears to be an issue of first impression in this Circuit, other courts have answere ...
From Archway Ins. Servs. v. James River Ins. Co., 2010 U.S. Dist. LEXIS 99708 (E.D. Pa. Sept. 21, 2010): The dispositive question is whether a claim for unearned premiums is a “claim under this policy” as specified in section 4(B).…
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Securities — Personal Jurisdiction for Control Group Claims — Fiduciary Shield Doctrine Inapt — Group Pleading Doctrine Not Viable under Private Securities Litigation Reform Act

From Snowstorm Acquisition Corp. v. Tecumseh Prods. Co., 2010 U.S. Dist. LEXIS 99259 (D. Del. Sept. 21, 2010): The standard for personal jurisdiction under § 20(a) is met if plaintiff makes a non-frivolous allegation that defendant controlled a person liable for securities fraud. 15 U.S.C. §§ 78t(a), 78aa. ...
From Snowstorm Acquisition Corp. v. Tecumseh Prods. Co., 2010 U.S. Dist. LEXIS 99259 (D. Del. Sept. 21, 2010): The standard for personal jurisdiction under § 20(a) is met if plaintiff makes a non-frivolous allegation that defendant controlled a person liable…
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Elements of the Torts of Spoliation under West Virginia Law

From Williams v. Great West. Cas. Co., 2009 U.S. Dist. LEXIS 46247 (N.D. W.V. June 1, 2009): A. Negligent Spoliation ***To prevail on a claim for the tort of negligent spoliation by a third party under West Virginia law, a plaintiff must show that (1) a pending or potential civil action existed; (2) the alleged spoliator h ...
From Williams v. Great West. Cas. Co., 2009 U.S. Dist. LEXIS 46247 (N.D. W.V. June 1, 2009): A. Negligent Spoliation ***To prevail on a claim for the tort of negligent spoliation by a third party under West Virginia law, a…
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No Waiver of Attorney-Client Privilege under New York Law Where Son Received Email and Forwarded It to Parents, But Parents’ Disclosure to Financial Advisor Did Effect Waiver

From Green v. Beer, 2010 U.S. Dist. LEXIS 87484 (S.D.N.Y. Aug. 24, 2010): The magistrate judge rejected Plaintiffs' assertion of attorney-client privilege with respect to email communications shared with certain persons who are neither attorneys nor parties in this litigation. These persons are identified as: (1) Paul Lenker, financial ad ...
From Green v. Beer, 2010 U.S. Dist. LEXIS 87484 (S.D.N.Y. Aug. 24, 2010): The magistrate judge rejected Plaintiffs’ assertion of attorney-client privilege with respect to email communications shared with certain persons who are neither attorneys nor parties in this litigation.…
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“Spoliation Can Be Knowing or Intentional Even If Not Done with Bad Faith.”

From Schumacher Immobilien und Beteiligungs AD v. Prova, Inc., 2010 U.S. Dist. LEXIS 74144 (M.D.N.C. July 21, 2010): *** Plaintiff alleges breach of contract and other claims related to two written contracts between the parties in which Plaintiff agreed to purchase from Defendant Prova a 1997 Porsche GT1 race car and various accompanying ...
From Schumacher Immobilien und Beteiligungs AD v. Prova, Inc., 2010 U.S. Dist. LEXIS 74144 (M.D.N.C. July 21, 2010): *** Plaintiff alleges breach of contract and other claims related to two written contracts between the parties in which Plaintiff agreed to…
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Reliance on Fact of Consultation with Counsel ≠ Reliance on Advice of Counsel Nor Effect Waiver — Beneficiary May Not Pierce Privilege of Indenture Trustee under Fiduciary Exception (Garner v. Wolfinbarger) for Substantive Advice

From CFIP Master Fund Ltd v. Citibank N.A., 2010 U.S. Dist. LEXIS 97771 (S.D.N.Y. Sept. 18, 2010): [Footnote 27] Contrary to the Fund's contentions, U.S. Bank is not asserting an "advice of counsel" defense, which would require the waiver of attorney-client privilege, by referring to the fact of its communication with counsel in the c ...
From CFIP Master Fund Ltd v. Citibank N.A., 2010 U.S. Dist. LEXIS 97771 (S.D.N.Y. Sept. 18, 2010): [Footnote 27] Contrary to the Fund’s contentions, U.S. Bank is not asserting an “advice of counsel” defense, which would require the waiver of…
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Sanctions — Reversible Error Not to Consider Lawyer’s Ability to Pay under Rule 37 — Inherent Power vs. Rule-Based Power in Punishing Discovery Abuse

In reversing all but $121,000 of a $2.7 million sanctions award, the Court in Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009) held the imposition of joint-and-several liability on counsel to the sanctioned plaintiffs was improper because his ability to pay the award was not considered: [Need to Consider ...
In reversing all but $121,000 of a $2.7 million sanctions award, the Court in Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009) held the imposition of joint-and-several liability on counsel to the sanctioned plaintiffs was…
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Criminal Trial Delay of 8 Months or More Presumptively Prejudicial to Speedy Trial Right — Absence of Multiple Defendants and Complex Procedural History Affects Weight of Presumption

From United States v. Crawford, 2010 U.S. Dist. LEXIS 97538 (E.D. Mich. Sept. 17, 2010): "A delay approaching one year is presumptively prejudicial." United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006) (citing Doggett 505 U.S. at 652 n. 1). Further, the Sixth Circuit has noted, "there seems general agreement that ...
From United States v. Crawford, 2010 U.S. Dist. LEXIS 97538 (E.D. Mich. Sept. 17, 2010): “A delay approaching one year is presumptively prejudicial.” United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006) (citing Doggett 505 U.S. at 652…
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No Corporate Liability under Alien Tort Claims Act

From Kiobel v. Royal Dutch Petroleum Co., 2010 U.S. App. LEXIS 19382 (2d Cir. Sept. 17, 2010): Once again we consider a case brought under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, a jurisdictional provision unlike any other in American law and of a kind apparently unknown to any other legal system in the world. Passed by the fi ...
From Kiobel v. Royal Dutch Petroleum Co., 2010 U.S. App. LEXIS 19382 (2d Cir. Sept. 17, 2010): Once again we consider a case brought under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a jurisdictional provision unlike any other…
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First Circuit Spoliation Standards

From Booker v. Mass. Dep’t of Public Health, 2010 U.S. App. LEXIS 14510 (1st Cir. July 15, 2010): Where a proper evidentiary foundation has been laid, "a trier of fact may (but need not) infer from a party's obliteration of a document relevant to a litigated issue that the contents of the document were unfavorable to that party." T ...
From Booker v. Mass. Dep’t of Public Health, 2010 U.S. App. LEXIS 14510 (1st Cir. July 15, 2010): Where a proper evidentiary foundation has been laid, “a trier of fact may (but need not) infer from a party’s obliteration 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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