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

Failure to Disclose a Judgment as Required by Statute Is Sanctionable under Inherent Power without Bad Faith— Amount of Sanction Is Unaffected by Median Income or Criminal Penalties

From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri ("Debtor") and her attorney, Richard D. Lamborn ("Lamborn"), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions against Lamborn and awarding attorney's fees to appellee 64th Stree ...
From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri (“Debtor”) and her attorney, Richard D. Lamborn (“Lamborn”), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions…
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Antitrust — When Municipal Entities and Officials May Invoke the State Action Doctrine

From Rectrix Aerodrome Ctrs., Inc. v. Barnstable Municipal Airport Comm’n, 610 F.3d 8 (1st Cir. 2010): Rectrix claims that restricting Rectrix from selling jet fuels at the airport violates section 2 of the Sherman Act, which forbids monopolization, attempted monopolization and conspiracies to monopolize. 15 U.S.C. § 2. The district ...
From Rectrix Aerodrome Ctrs., Inc. v. Barnstable Municipal Airport Comm’n, 610 F.3d 8 (1st Cir. 2010): Rectrix claims that restricting Rectrix from selling jet fuels at the airport violates section 2 of the Sherman Act, which forbids monopolization, attempted monopolization…
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Burdens, Pleadings and Proof on 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010): Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor C ...
From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010): Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The…
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Removal — Fraudulent Joinder — Fifth Circuit Test and Procedure

From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): "[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show that sham defendants were added to defeat jurisdiction." Smallwood v. I11. Cent. R.R. Co., 385 F.3d 568, 575 (5th ...
From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): “[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show…
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Scope of Statutory Privilege for Documents Created “Specifically for [PCAOB ]” — Issue of First Impression — Log Required — Categorical Log Rejected

From Silverman vs. Motorola, Inc., 2010 U.S. Dist. LEXIS 81671 (N.D. Ill. June 29, 2010): In its motion, KPMG seeks to quash the subpoenas issued to it by Plaintiffs and to preclude Plaintiffs from questioning KPMG, through Mr. Pratt and Mr. Parrott, regarding the PCAOB inspection process. Resolution of KPMG's motion turns on the statut ...
From Silverman vs. Motorola, Inc., 2010 U.S. Dist. LEXIS 81671 (N.D. Ill. June 29, 2010): In its motion, KPMG seeks to quash the subpoenas issued to it by Plaintiffs and to preclude Plaintiffs from questioning KPMG, through Mr. Pratt and…
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After § 1404 Transfer, Circuit Reviews Issues Decided by Transferor Court (Circuit Split) — Voluntary Dismissal of Federal Claim Does Not Affect §1367 Jurisdiction — What Is Inadvertent? (Good Quote)

From Anderson v. Aon Corp.,, 2010 U.S. App. LEXIS 15250 (7th Cir. July 26, 2010): Anderson's lead argument on appeal is that, once he withdrew the RICO claim, federal jurisdiction vanished and 28 U.S.C. § 1447(c) obliged the court to remand. Section 1447(c) says, among other things, that "[i]f at any time before final judgment it appear ...
From Anderson v. Aon Corp.,, 2010 U.S. App. LEXIS 15250 (7th Cir. July 26, 2010): Anderson’s lead argument on appeal is that, once he withdrew the RICO claim, federal jurisdiction vanished and 28 U.S.C. § 1447(c) obliged the court to…
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Court Enjoys Wide Discretion to Decide If There Is a Pattern of Delay or Disobedience to Court Orders Justifying Rule 16(f) Sanctions — Denial of Sanctions for Untimely Production of Minimally Relevant Documents Upheld

From Guimaraes v. Nors, 366 F. App’x. 51(11th Cir. 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld the denial of sanctions where the non-moving party had not timely produced documents ...
From Guimaraes v. Nors, 366 F. App’x. 51(11th Cir. 2010): Under Rule 16(f), a court may impose sanctions if a party or its attorney violates a scheduling or other pretrial order, including a discovery order. Fed.R.Civ.P. 16(f)(1)(C). We have upheld…
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Scientific vs. Technical Expert Testimony — Impact on Acceptable Qualifications

From Rose v. Truck Centers, Inc., 2010 U.S. App. LEXIS 16396 (6th Cir. Aug. 6, 2010): In order to qualify as an expert under Rule 702, a witness must establish his or her expertise by reference to "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. Although this requirement is typically treated liberally, a witnes ...
From Rose v. Truck Centers, Inc., 2010 U.S. App. LEXIS 16396 (6th Cir. Aug. 6, 2010): In order to qualify as an expert under Rule 702, a witness must establish his or her expertise by reference to “knowledge, skill, experience,…
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Work Product — Subject Matter Waiver Effected by Issuing Press Release Based on Discussions with Prosecutors That Were Otherwise Protected as Work Product

From E.I. duPont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 77075 (E.D. Va. July 30, 2010): ***DuPont alleges that Kolon stole its secret processes and technologies for manufacturing Kevlar, and that Kolon has improved its product line based on this trade secret theft. *** The Court recently issued a Memorandum Opinio ...
From E.I. duPont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 77075 (E.D. Va. July 30, 2010): ***DuPont alleges that Kolon stole its secret processes and technologies for manufacturing Kevlar, and that Kolon has improved its product…
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Court May Not Invoke Inherent Power to Sanction Misconduct before Administrative Tribunal

From Children’s Ctr. for Devel. Enrichment v. Machle, 2010 U.S. App. LEXIS 14600 (6th Cir. July 16, 2010): Courtland and Michelle Bishop and their minor disabled son CB brought suit against the private school to which CB had been assigned after the school expelled CB. The district court dismissed the claims, and the Bishops initiated ...
From Children’s Ctr. for Devel. Enrichment v. Machle, 2010 U.S. App. LEXIS 14600 (6th Cir. July 16, 2010): Courtland and Michelle Bishop and their minor disabled son CB brought suit against the private school to which CB had been assigned…
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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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