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

Local Controversy Exception of CAFA May Be Proved “Practically” — Wide Discretion Accorded Trial Court to Determine Evidence — No Need for Exhaustive Discovery

From Graphic Commc’ns Local 1B Health & Welfare Fund "A" v. CVS Caremark Corp, 2010 U.S. Dist. LEXIS 73459 (D. Minn. July 19, 2010): The pharmacies suggest the Class Action Fairness Act (the "Fairness Act") grants subject matter jurisdiction because there is minimal diversity, and an aggregate amount in controversy of $5 million or more ...
From Graphic Commc’ns Local 1B Health & Welfare Fund “A” v. CVS Caremark Corp, 2010 U.S. Dist. LEXIS 73459 (D. Minn. July 19, 2010): The pharmacies suggest the Class Action Fairness Act (the “Fairness Act”) grants subject matter jurisdiction because…
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Failure to Participate in Drafting of Pretrial Order Sanctionable under Rule 16(f) — Lawyer Not Vicariously Liable under § 1927 for Failure to Monitor Co-Counsel

From FM Indus., Inc. v. Citicorp Credit Servs., 2010 U.S. App. LEXIS 15057 (7th Cir. July 22, 2010): [Rule 16(f)] Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local Rule 16.1 Appendix ("Standing Order Establishing Pretrial Procedure") Instr ...
From FM Indus., Inc. v. Citicorp Credit Servs., 2010 U.S. App. LEXIS 15057 (7th Cir. July 22, 2010): [Rule 16(f)] Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local…
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Representing Adverse Party in Substantially Related Claim Is Actionable Breach of Fiduciary Duty Owed to Prior Client

From Kurman v. Schnapp, 73 A.D.3d 435 (1st Dept. 2010): Plaintiff's breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9-10, 865 N.Y.S ...
From Kurman v. Schnapp, 73 A.D.3d 435 (1st Dept. 2010): Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory…
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Rule 15 Permits Amendment of Complaint against Non-Moving Defendants after Rule 12 Motion — Investment Injury under § 1962(a) of RICO — Enterprise May Be Both Vehicle and Victim Enterprise

From Allen v. Devine, 2010 U.S. Dist. LEXIS 74495 (E.D.N.Y. July 24, 2010): [Rule 15] Pursuant to Rule 15, the right to amend the complaint once without leave from the Court does not terminate until 21 days after the filing of either (1) an answer or (2) a motion pursuant to Rule 12(b), (e), or (f) ...
From Allen v. Devine, 2010 U.S. Dist. LEXIS 74495 (E.D.N.Y. July 24, 2010): [Rule 15] Pursuant to Rule 15, the right to amend the complaint once without leave from the Court does not terminate until 21 days after the filing…
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Must Trial Court Stay Proceedings Pending Appeal of Denial of Motion to Compel Arbitration? Circuit Split

From McArdle v. AT&T Mobility LLC, 2010 U.S. Dist. LEXIS 73519 (N.D. Cal. July 20, 2010): Some jurisdictions hold that the trial court must stay proceedings while a denial of a motion to compel arbitration is appealed. See, e.g., Bradford-Scott Data Corp. v. Physician Computer Network, 128 F.3d 504, 505-06 (7th Cir. 1997); ...
From McArdle v. AT&T Mobility LLC, 2010 U.S. Dist. LEXIS 73519 (N.D. Cal. July 20, 2010): Some jurisdictions hold that the trial court must stay proceedings while a denial of a motion to compel arbitration is appealed. See, e.g., Bradford-Scott…
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Ability to Pay and Safe Harbor Irrelevant to § 1927 Sanctions — Facial Unconstitutionality of § 1927 Waived when Not Asserted in Challenge to Sanctionability of Conduct — Circuit Panel Bound by Prior Panel Precedent

From Roth v. Spruell, 2010 U.S. App. LEXIS 15112 (10th Cir. July 22, 2010): [On a prior appeal in this case abbreviated Roth II], we considered whether defendants had followed the procedures outlined in Rule 11. Because defendants had not done so, we concluded that the district court had abused its discretion in granting defend ...
From Roth v. Spruell, 2010 U.S. App. LEXIS 15112 (10th Cir. July 22, 2010): [On a prior appeal in this case abbreviated Roth II], we considered whether defendants had followed the procedures outlined in Rule 11. Because defendants had not…
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RICO — Open-Ended Continuity — Predicate Acts, Not Other Conduct, Must Form the Enterprise’s Regular Way of Doing Business

From Carson v. Vernon Township, 2010 U.S. Dist. LEXIS 73620 (D.N.J. July 21, 2010): Plaintiff, Richard Carson, a member of the Township Council ("Council") of Defendant, Vernon Township ("Township"), filed a Complaint and subsequently an Amended Complaint against the Defendants, who include the Township, its Police Department, a police of ...
From Carson v. Vernon Township, 2010 U.S. Dist. LEXIS 73620 (D.N.J. July 21, 2010): Plaintiff, Richard Carson, a member of the Township Council (“Council”) of Defendant, Vernon Township (“Township”), filed a Complaint and subsequently an Amended Complaint against the Defendants,…
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Parameters of Adverse Counsel’s Contacting Former Employees of Corporate Party — Substantial Exposure to Privileged Communications or Service as Litigation Consultant as Touchstone

From Weber v. Fujifilm Med. Sys., USA, 2010 U.S. Dist. LEXIS 72416 (D. Conn. July 19, 2010): In an exhaustive decision on this issue, then District Judge Jose A. Cabranes held, in a case of first impression, that an attorney representing a client against a corporate party may conduct ex parte interviews of former employees of the corporat ...
From Weber v. Fujifilm Med. Sys., USA, 2010 U.S. Dist. LEXIS 72416 (D. Conn. July 19, 2010): In an exhaustive decision on this issue, then District Judge Jose A. Cabranes held, in a case of first impression, that an attorney…
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“Plain Error” — Absence of Intracircuit Authority and Circuit Split on Issue Render Alleged Error Anything But Plain

From United States v. Williams, 2010 U.S. App. LEXIS 14852 (3d Cir. July 20, 2010): As noted earlier, we review the District Court's decision under the plain error standard. Thus, assuming that Williams is correct that the sentence imposed by the District Court exceeded the maximum prison term authorized by the supervised release statute ...
From United States v. Williams, 2010 U.S. App. LEXIS 14852 (3d Cir. July 20, 2010): As noted earlier, we review the District Court’s decision under the plain error standard. Thus, assuming that Williams is correct that the sentence imposed by…
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RICO — Theft Coupled with Continuous Use of Stolen Property ≠ Pattern

From Spindletop Drilling Co. v. Lewis, 2010 U.S. Dist. LEXIS 70889 (W.D. Ark. July 14, 2010): Spindletop alleges that, after refusing to sell certain storage tanks to Lewis, Lewis and/or Lewis Louisiana Properties removed four storage tanks from Spindletop's well in Clairborne Parish, Louisiana (the Waller-Taylor Well) and transported th ...
From Spindletop Drilling Co. v. Lewis, 2010 U.S. Dist. LEXIS 70889 (W.D. Ark. July 14, 2010): Spindletop alleges that, after refusing to sell certain storage tanks to Lewis, Lewis and/or Lewis Louisiana Properties removed four storage tanks from Spindletop’s well…
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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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