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

Existing Jury Instructions Against Use of Social Networks, Google, Internet Research, Etc.

The Going Paperless blog of Molly DiBianca collects the jury instructions proposed by the U.S. Judicial Conference and those adopted by 10 states, 3 Circuits and the Northern District of Iowa. See SOCIAL MEDIA RESEARCH REPOSITORY. It is extremely useful. ...
The Going Paperless blog of Molly DiBianca collects the jury instructions proposed by the U.S. Judicial Conference and those adopted by 10 states, 3 Circuits and the Northern District of Iowa. See SOCIAL MEDIA RESEARCH REPOSITORY. It is extremely…
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Rule 12(f) Does Not Authorize Court to Strike Damages Claim on Ground Damages Are Precluded as a Matter of Law — Issue of First Impression

From Whittlestone, Inc. v. Handi-Craft Co., 2010 U.S. App. LEXIS 1713 (9th Cir. Aug. 17, 2010): In this case of first impression, we hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law. *** Rul ...
From Whittlestone, Inc. v. Handi-Craft Co., 2010 U.S. App. LEXIS 1713 (9th Cir. Aug. 17, 2010): In this case of first impression, we hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court…
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Diminution in Value of Limited Partnership Interests As a Derivative, Not a Direct, Injury

From Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 2010 WL 2569187 (N.Y. Ct. App. June 29, 2010): In these actions, plaintiffs, former limited partners of Lipper Convertibles, LP, assert direct claims of fraud against PricewaterhouseCoopers, LLP (PwC), the auditor of Lipper Convertibles' annual financial statements for the years 19 ...
From Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 2010 WL 2569187 (N.Y. Ct. App. June 29, 2010): In these actions, plaintiffs, former limited partners of Lipper Convertibles, LP, assert direct claims of fraud against PricewaterhouseCoopers, LLP (PwC), the auditor of Lipper…
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Range of Available Sanctions for Spoliation

From D'Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless, has a great deal of discretion in exercising its inherent powers to fashion an appropriate ...
From D’Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless,…
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Sanctions — Ninth Circuit Declines to Resolve whether Finding of Bad Faith Must be Supported by Clear and Convincing Evidence

From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously "multiplies the proceedings" may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C. § 1927. Recklessness suffices for § 1927 sanctions, but sanctions imposed under the district court ...
From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously “multiplies the proceedings” may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C.…
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The United States Has Not Waived Sovereign Immunity for Civil RICO Claims

From Partain v. Isgur, 2010 U.S. App. LEXIS 15730 (5th Cir. July 28, 2010): [T]o the extent Partain seeks to recover against the United States under the RICO statute, no waiver of the government's immunity extends to such laws. See McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993).
From Partain v. Isgur, 2010 U.S. App. LEXIS 15730 (5th Cir. July 28, 2010): [T]o the extent Partain seeks to recover against the United States under the RICO statute, no waiver of the government’s immunity extends to such laws. See…
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Standard of Review of Magistrate Judge Discovery Decisions

From Moore v. Napolitano, 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010): Federal Rule of Civil Procedure 72(a) and [D.D.C.] Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is cl ...
From Moore v. Napolitano, 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010): Federal Rule of Civil Procedure 72(a) and [D.D.C.] Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge’s decision in a discovery dispute.…
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Rule 54(b) Standards for Entering Partial Judgment — Ordinarily No 54(b) for Denial of Summary Judgment — Ninth Circuit 10b-5 Scienter Standard

From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court's Rule 54(b) judgment resting on the underlying partial summary judgment. Rule 54(b) permits a district court to enter judgme ...
From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court’s Rule 54(b) judgment resting on the underlying partial summary judgment.…
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Rule 11 and Res Judicata — Eleventh Circuit’s Three-Part Test for § 1927 Sanctions

From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] "A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata." Thomas [v. Evans, 880 F.2d 1235, 1240 (11th Cir. 1989). [Note: Because res j ...
From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] “A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata.” Thomas [v. Evans, 880…
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RICO — Pleading Enterprise, Operation and Management and Conspiracy after Boyle and Twombly

From In re Ins. Brokerage Antitrust Litig., 2010 U.S. App. LEXIS 17107 (3d Cir. Aug. 16, 2010): 1. Legal Standards a. Section 1962(c) i. The Enterprise Element ***After the District Court had dismissed plaintiffs' claims, and after we had heard argument in this appeal, the Supreme Court decided Boyle v. ...
From In re Ins. Brokerage Antitrust Litig., 2010 U.S. App. LEXIS 17107 (3d Cir. Aug. 16, 2010): 1. Legal Standards a. Section 1962(c) i. The Enterprise Element ***After the District Court had dismissed plaintiffs’ claims, and after we had heard…
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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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