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

Motions to Strike Impertinent, Immaterial or Scandalous Matters — Standards

From Smith v. Levine Leichtman Capital Partners, 2010 U.S. Dist. LEXIS 71041 (N.D. Cal. June 29, 2010): "The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous material." Fed. R. Civ. P. (12)(f). Immaterial matter "is that which has no essential or important re ...
From Smith v. Levine Leichtman Capital Partners, 2010 U.S. Dist. LEXIS 71041 (N.D. Cal. June 29, 2010): “The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous material.” Fed. R. Civ. P.…
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Removal — Circuit Split — Each Co-Defendant Need Not Sign Removal Notice or Submit a Timely Notice of Consent in Writing (District Court in Undecided 10th Circuit) — Silence vs. Ambiguity of Statute (Good Quote)

From Tresco, Inc. v. Continental Cas. Co., 2010 U.S. Dist. LEXIS 71294 (D.N.M. July 2, 2010): The Tenth Circuit***has not stated what is necessary to satisfy the requirement that all defendants "join in the removal petition." *** The United States Courts of Appeals for the Fifth, Seventh, and Eighth Circuits, and some district cour ...
From Tresco, Inc. v. Continental Cas. Co., 2010 U.S. Dist. LEXIS 71294 (D.N.M. July 2, 2010): The Tenth Circuit***has not stated what is necessary to satisfy the requirement that all defendants “join in the removal petition.” *** The United States…
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Motion and Counterclaim Filed at Eleventh Hour Stricken as Filed in Bad Faith — Inherent Power Sanction

From Strategic Turnaround Equity Partners, LP (Cayman) v. Fife, 2010 U.S. Dist. LEXIS 63629 (E.D. Mich. June 28, 2010): In this corporate dispute, Plaintiff Strategic Turnaround Equity Partners, L.P. ("Strategic") claims that Defendants United American Healthcare Corporation ("UAHC"), Thomas Goss, St. George Investments, LLC ("St. George ...
From Strategic Turnaround Equity Partners, LP (Cayman) v. Fife, 2010 U.S. Dist. LEXIS 63629 (E.D. Mich. June 28, 2010): In this corporate dispute, Plaintiff Strategic Turnaround Equity Partners, L.P. (“Strategic”) claims that Defendants United American Healthcare Corporation (“UAHC”), Thomas Goss,…
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Full Compensation of Insured Does Not Preclude Contractual Subrogation — Issue of First Impression under Texas Law

From Amerisure Ins. Co. v. Navigators Ins. Co., 2010 U.S. App. LEXIS 14354 (5th Cir. July 13, 2010): The first issue that we must address is one of first impression for this court: whether Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co., 236 S.W.3d 765, 776 (Tex. 2007), precludes contractual subrogation simply because ...
From Amerisure Ins. Co. v. Navigators Ins. Co., 2010 U.S. App. LEXIS 14354 (5th Cir. July 13, 2010): The first issue that we must address is one of first impression for this court: whether Mid-Continent Insurance Co. v. Liberty Mutual…
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Federal Circuit Applies Regional Circuit Law to Discovery Matters Generally But Not When Substantive Patent Law Is Implicated

From In re Deutsche Bank Trust Co. Americas and Total Bank Solutions, LLC, 605 F.3d 1373 (Fed. Cir. 2010): On August 19, 2009, Deutsche sought a protective order including a patent prosecution bar preventing anyone who gains access in the litigation to documents marked "confidential — patent prosecution bar" from any involvement in pro ...
From In re Deutsche Bank Trust Co. Americas and Total Bank Solutions, LLC, 605 F.3d 1373 (Fed. Cir. 2010): On August 19, 2009, Deutsche sought a protective order including a patent prosecution bar preventing anyone who gains access in the…
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Neither Willful Ignorance Nor Division of Labor States a Defense to § 1927 Sanctions when Asserted by Lead Counsel

From In re Girardi (Franco v. Dow Chemical Co.), 2010 U.S. App. LEXIS 14292 (9th Cir. July 13, 2010) (adopting R&R of Senior Circuit Judge Tashima, sitting as Special Master): The young associate drafted the Opening Brief, which contends that Dole Food Company was the judgment debtor. He repeated that contention in the Reply Brief, altho ...
From In re Girardi (Franco v. Dow Chemical Co.), 2010 U.S. App. LEXIS 14292 (9th Cir. July 13, 2010) (adopting R&R of Senior Circuit Judge Tashima, sitting as Special Master): The young associate drafted the Opening Brief, which contends that…
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District Court May Impose Costs Pursuant to FRAP 39(a)(4) & (e) without Prior Appellate Itemization — Cost of Letter of Credit to Stay Execution — De Novo Review of District Court Interpretations of FRAP

From L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24 (2d Cir. 2010): Appellant OSI Systems, Inc. ("OSI") appeals from an April 27, 2009, order of the United States District Court for the Southern District of New York (Crotty, J.) upholding the district court clerk's decision to tax to OSI, pursuant to Federal Rule of Appellate Proce ...
From L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24 (2d Cir. 2010): Appellant OSI Systems, Inc. (“OSI”) appeals from an April 27, 2009, order of the United States District Court for the Southern District of New York (Crotty,…
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Sanctions under the PSLRA — Second Eleventh Circuit Decision in 2010

From Thompson v. Jacoby, 2010 U.S. App. LEXIS 13371 (11th Cir. 2010): If the court finds a party or attorney violated any requirement of Rule 11(b), the court "shall" impose sanctions in accordance with Rule 11. 15 U.S.C. § 78u-4(c)(3). If a complaint substantially fails to comply with Rule 11(b), the presumptive sanction is attorn ...
From Thompson v. Jacoby, 2010 U.S. App. LEXIS 13371 (11th Cir. 2010): If the court finds a party or attorney violated any requirement of Rule 11(b), the court “shall” impose sanctions in accordance with Rule 11. 15 U.S.C. § 78u-4(c)(3).…
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Waiver by Failure to Alert Court of Appeals of Relevant Supreme Court Decision Issued after Briefing and Argument Have Ended

From Rent-A-Center, W., Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010)(note: the substantive holding of this case is discussed in our post of June 23, 2010): In his brief to this Court, Jackson made the contention, not mentioned below, that the delegation provision itself is substantively unconscionable because the q ...
From Rent-A-Center, W., Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010)(note: the substantive holding of this case is discussed in our post of June 23, 2010): In his brief to this Court, Jackson made the contention, not…
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Elements of Associational Standing — Associational Standing Exists to Assert Injunctive, But Not Damages, Claims (11th Circuit) — Application to ERISA

From Borrero v. United Healthcare of N.Y., Inc., 2010 U.S. App. LEXIS 13738 (11th Cir. July 6, 2010): 3. Associational Standing The representative associations argue that the district court lacked federal jurisdiction over their claims, even if the claims of the individual Appellants were completely preempted by ERISA. ...
From Borrero v. United Healthcare of N.Y., Inc., 2010 U.S. App. LEXIS 13738 (11th Cir. July 6, 2010): 3. Associational Standing The representative associations argue that the district court lacked federal jurisdiction over their claims, even if the claims of…
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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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