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

Inherent Power Limited by Statute Providing Exclusive Remedy for Violation of Injunction

From Kovacs v. United States, 2010 U.S. App. LEXIS 15615 (7th Cir. July 29, 2010): Kovacs, a taxpayer, filed suit against Defendant-Appellee United States of America seeking to recover damages resulting from the Internal Revenue Service's ("IRS") alleged violation of the discharge injunction provided by Section 524 of the Bankruptcy Code, ...
From Kovacs v. United States, 2010 U.S. App. LEXIS 15615 (7th Cir. July 29, 2010): Kovacs, a taxpayer, filed suit against Defendant-Appellee United States of America seeking to recover damages resulting from the Internal Revenue Service’s (“IRS”) alleged violation of…
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Limitations of Attorneys’ Eyes’ Only Protective Orders

From Schiller v. City of N.Y., 607 F.3d 923 (2d Cir. 2010), explaining why a protective order with attorneys’-eyes’-only protection was an inadequate safeguard to protect intelligence reports (“Field Reports”) compiled by the NYPD: A. Disclosure on an "Attorneys' Eyes Only" Basis Is Inadequate The disclosure of co ...
From Schiller v. City of N.Y., 607 F.3d 923 (2d Cir. 2010), explaining why a protective order with attorneys’-eyes’-only protection was an inadequate safeguard to protect intelligence reports (“Field Reports”) compiled by the NYPD: A. Disclosure on an “Attorneys’ Eyes…
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Document Created by Auditor Containing Legal Advice Protected by Work Product Even Though Prepared for Audit Purposes (Circuit Split) — Disclosure of Work Product to Auditor ≠ Waiver (Caselaw Split)

United States v. Deloitte LLP, 2010 U.S. App. LEXIS 13226 (D.C. Cir. June 29, 2010) creates at least two cert-worthy issues. Its holding that an auditor-created document, prepared for purposes of determining appropriate reserves based on legal advice of the audit client, is entitled to work product protection is in conflict with the First Circuit’s decisio ...
United States v. Deloitte LLP, 2010 U.S. App. LEXIS 13226 (D.C. Cir. June 29, 2010) creates at least two cert-worthy issues. Its holding that an auditor-created document, prepared for purposes of determining appropriate reserves based on legal advice of the…
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Spoliation of Contract Irrelevant Once Plaintiff Has Waived the Contract — Waiver Via Position Taken in Divorce Proceedings — Negligent Spoliation under Illinois Law

From Millar v. Lakin Law Firm PC, 2010 U.S. Dist. LEXIS 60057 (S.D. Ill. June 17, 2010): Millar, an attorney licensed in the states of Illinois and Missouri, began working for Defendant Lakin Law Firm PC ... in May 2000. On or about January 15, 2004, Millar met with Bradley Lakin..., the managing partner of the firm, and Steven Schweiz ...
From Millar v. Lakin Law Firm PC, 2010 U.S. Dist. LEXIS 60057 (S.D. Ill. June 17, 2010): Millar, an attorney licensed in the states of Illinois and Missouri, began working for Defendant Lakin Law Firm PC … in May 2000.…
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Arbitration Sanctions — Arbitration Panel Is Empowered to Award Attorneys’ Fees for Bad Faith Litigation Abuse

From First Auto. Serv. Corp. v. First Colonial Ins. Co., 2010 U.S. Dist. LEXIS 66974 (M.D. Fla. June 16, 2010): In the Final Award As To Attorneys' Fees And Costs dated September 26, 2009..., the panel awarded Northbrook $ 458,430.42 in attorneys' fees, plus $ 63,380.80 in costs (reflecting plaintiffs'/claimants' share of the unpaid stat ...
From First Auto. Serv. Corp. v. First Colonial Ins. Co., 2010 U.S. Dist. LEXIS 66974 (M.D. Fla. June 16, 2010): In the Final Award As To Attorneys’ Fees And Costs dated September 26, 2009…, the panel awarded Northbrook $ 458,430.42…
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Chevron vs. Skidmore Deference

From Taproot Administrative Servs. v. Comm’r of Internal Revenue, 133 T.C. 202, 2009 U.S. Tax Ct. LEXIS 29, 133 T.C. No. 9 (U.S. Tax Court Sept. 29, 2009): In United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), the Supreme Court recognized that there are various types of agency pronouncements tha ...
From Taproot Administrative Servs. v. Comm’r of Internal Revenue, 133 T.C. 202, 2009 U.S. Tax Ct. LEXIS 29, 133 T.C. No. 9 (U.S. Tax Court Sept. 29, 2009): In United States v. Mead Corp., 533 U.S. 218, 121 S. Ct.…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Third Circuit Reserves Decision as to Whether Rule 11 Sanctions Imposed after Final Judgment Must Be Vacated under Its Supervisory Rule

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): [Footnote 16.] Pepper Hamilton also argues that, because the District Court imposed sanctions after it had already issued a final judgment, the sanctions must be reversed in light of the supervisory rule we ...
From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): [Footnote 16.] Pepper Hamilton also argues that, because the District Court imposed sanctions after it had already issued…
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Credit Default Swap on Home Mortgage Purchased by Mortgagee Does Not Inure to the Benefit of Mortgagor or Relieve Mortgagor’s Debt

From Dumont v. HSBC Mortgage Corp., USA, 2010 U.S. Dist. LEXIS 77805 (D. Ariz. July 30, 2010): In their fourth claim for relief, Plaintiffs' allege that HSBC or another heretofore unknown party may have purchased or collected proceeds available under one or more credit-default swaps of which Plaintiffs' mortgage might have been a part, a ...
From Dumont v. HSBC Mortgage Corp., USA, 2010 U.S. Dist. LEXIS 77805 (D. Ariz. July 30, 2010): In their fourth claim for relief, Plaintiffs’ allege that HSBC or another heretofore unknown party may have purchased or collected proceeds available under…
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Rule 37, Default/Dismissal & Contempt Sanctions in the Second Circuit — Inherent Power Defers to Applicable Rule — No Harm, No Foul Rejected

From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that "[s]everal factors may be useful in evaluating a district court's exercise of discretion" to impose sanctions pursuant to this rule [Fed. R. Ci ...
From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that “[s]everal factors may be useful in evaluating a…
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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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