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

Tenth Circuit Requires Subjective Bad Faith for Inherent Power Sanctions but Applies Objective Test to Determine Vexatiousness under § 1927

From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court's order summarizes some errant conduct on the part of defendants. However, it lacks a finding of "subjective wrongdoing . . . required to support a fee award" under the federal courts' inherent power. *** The cases relied upon by the dis ...
From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court’s order summarizes some errant conduct on the part of defendants. However, it lacks a finding of “subjective wrongdoing . . . required to support…
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Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant... ...
From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden…
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Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court's factual findings, such findings are reviewed for clear error. Fed. R. Civ. P. 52(a)(6). A district court's finding of fact is clearly erroneous ...
From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court’s factual findings, such findings are reviewed for clear…
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The Law of the Case Doctrine

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): "'As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Indus. Operati ...
From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): “‘As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should…
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Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the destruction of emails and TISH reports. They request an inference that "the evidence destroyed was unfav ...
From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the…
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Rule 802(d)(2) Admissions in Employment Actions — Employee-Speaker Must Have Been Involved in the Decision-Making Process

From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): "[A]n employee's statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was 'involved in the decisionmaking process affecting the employment action' at issue." Johns ...
From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): “[A]n employee’s statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was ‘involved…
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Fraudulent Joinder Standard Is More Deferential to Plaintiff than 12(b)(6) Standard — “Any Reasonable Possibility” vs. “Any Possibility”

From Sanders v. DJO, LLC, 2010 U.S. Dist. LEXIS 89652 (D.N.M. July 7, 2010): Defendants claiming that fraudulent joinder has occurred bear the burden of establishing that fact. This burden is a heavy one. See, e.g., Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 764 (7th Cir. 2009); Montano v. Allstate Indemnity, 2 ...
From Sanders v. DJO, LLC, 2010 U.S. Dist. LEXIS 89652 (D.N.M. July 7, 2010): Defendants claiming that fraudulent joinder has occurred bear the burden of establishing that fact. This burden is a heavy one. See, e.g., Schur v. L.A. Weight…
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Arbitration Agreement’s Selection of State Arbitration Act Does Not Entirely Displace FAA or Effect Waiver of Right to Remove — Intent to Apply State Vacatur Standards Must be Clear

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the "domestic FAA"), 9 U.S.C. §§ 1-16, is a set of default rules "designed 'to overrule the judiciary's longstanding refu ...
From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the “domestic FAA”),…
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Delay of 4 Months before Serving Rule 11 Motion and 13 Months before Filing Is Not Undue, If Safe Harbor Honored — Calculating Non-Specific Attorneys’ Fees by Percentage of Frivolous Counts

From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits that this lassitude should have led to a dismissal of the request. Sigman and Thomas counter that Golde ...
From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits…
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Defendant May Implead Contractual Indemnitor as Third-Party Defendant without Awaiting Determination of Its Liability vis-à-vis Plaintiff

From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad's third-party complaint can be dismissed as premature because, assuming an indemnification agreement exists, it has not yet been breached. In the City's vie ...
From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad’s third-party complaint can be dismissed as premature because, assuming an…
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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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