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

Elements of Judicial Estoppel (Majority View) — Application to Statements of Counsel

From Ries v. Paige, 2010 U.S. App. LEXIS 13780 (5th Cir. June 28, 2010): "Judicial estoppel is an equitable doctrine that 'prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.'" Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Ci ...
From Ries v. Paige, 2010 U.S. App. LEXIS 13780 (5th Cir. June 28, 2010): “Judicial estoppel is an equitable doctrine that ‘prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken…
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Categories of Preemption: Express vs. Conflict vs. Field — Passenger’s State Law Personal Injury Claim for Negligence Against Air Carrier Not Preempted by Federal Aviation Act

From Elassaad v. Independence Air, Inc., 2010 U.S. App. LEXIS 13721 (3d Cir. July 6, 2010): Joseph Elassaad appeals from an order granting summary judgment in favor of Independence Air, Inc., with respect to his negligence claim for injuries sustained when he fell while disembarking from an airplane at the Philadelphia International Airpo ...
From Elassaad v. Independence Air, Inc., 2010 U.S. App. LEXIS 13721 (3d Cir. July 6, 2010): Joseph Elassaad appeals from an order granting summary judgment in favor of Independence Air, Inc., with respect to his negligence claim for injuries sustained…
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Arbitration Award between Plaintiff and One of Two Defendants Properly Reduced to Judgment under Rule 54(b) Despite Existence of Unresolved Litigation against Second Defendant — 54(b) Factors

The City terminated its contractor (MCI) in MCI Constructors, LLC v. City of Greensboro, 2010 U.S. App. LEXIS 13495 (4th Cir. July 1, 2010), and the contractor sued both the city and the engineering firm (Hazen and Sawyer). The contractor and the city elected to arbitrate their dispute rather than litigate it in the court action; the city won; and it success ...
The City terminated its contractor (MCI) in MCI Constructors, LLC v. City of Greensboro, 2010 U.S. App. LEXIS 13495 (4th Cir. July 1, 2010), and the contractor sued both the city and the engineering firm (Hazen and Sawyer). The contractor…
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Attorneys’ Fees and Prejudgment Interest Awarded by C.D. Cal. in RICO Action (Default Judgment) — Voluntarily Halving Actual Fees “Eminently Reasonable”

From Monex Deposit Co. v. Gilliam, 2010 U.S. Dist. LEXIS 65767 (C.D. Cal. May 24, 2010): RICO *** requires an award of reasonable attorney's fees and costs. See 18 U.S.C. §1964(c) ("Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United ...
From Monex Deposit Co. v. Gilliam, 2010 U.S. Dist. LEXIS 65767 (C.D. Cal. May 24, 2010): RICO *** requires an award of reasonable attorney’s fees and costs. See 18 U.S.C. §1964(c) (“Any person injured in his business or property by…
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Communications Between Investment Banker and Lawyer for Common Client Unprivileged, as Are Communications Between Lawyer and Client cc’ing Investment Banker

From Dahl v. Bain Capital Partners, LLC, 2010 U.S. Dist. LEXIS 61640 (D. Mass. June 22, 2010): This matter comes before the Court on the plaintiffs' motion to compel documents from defendant, JP Morgan Chase & Co. The underlying lawsuit relates to the leveraged buyouts of a number of companies of which plaintiffs were shareholders (the ...
From Dahl v. Bain Capital Partners, LLC, 2010 U.S. Dist. LEXIS 61640 (D. Mass. June 22, 2010): This matter comes before the Court on the plaintiffs’ motion to compel documents from defendant, JP Morgan Chase & Co. The underlying lawsuit…
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Well-Pleaded Complaint Rule vs. Artful Pleading Doctrine: Is the Plaintiff Really the Master of Its Complaint?

From Romano v. Kazacos, 2010 U.S. App. LEXIS 13220 (2d Cir. June 29, 2010), in which the issue was whether the complaint was subject to the Securities Litigation Uniform Standards Act: A. Master of the Complaint Appellants initially contend that the District Court impermissibly looked beyond the face of the amended compla ...
From Romano v. Kazacos, 2010 U.S. App. LEXIS 13220 (2d Cir. June 29, 2010), in which the issue was whether the complaint was subject to the Securities Litigation Uniform Standards Act: A. Master of the Complaint Appellants initially contend that…
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No Cause of Action under Treaty unless One Is Expressly Set Forth

From Katel LLC v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010): KATEL argues that the International Telecommunications Regulations ("ITRs") afford it a private right of action against AT&T. This is a matter of first impression for this Court. The ITRs have treaty status and were promulgated by the International Telecommunications Unio ...
From Katel LLC v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010): KATEL argues that the International Telecommunications Regulations (“ITRs”) afford it a private right of action against AT&T. This is a matter of first impression for this Court. The…
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35 U.S.C. § 285 vs. Inherent Power Sanctions

From Funai Elec. Co. v. Daewoo Elecs., 593 F. Supp. 2d 1088 (N.D. Cal. 2009): Expert witness fees are not available under § 285 but may be awarded under the Court's inherent power to sanction fraud or abuse of the judicial process. See Amsted Industries Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 377-78 (Fed. Cir. 1994).
From Funai Elec. Co. v. Daewoo Elecs., 593 F. Supp. 2d 1088 (N.D. Cal. 2009): Expert witness fees are not available under § 285 but may be awarded under the Court’s inherent power to sanction fraud or abuse of the…
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Meaning of “Evident Partiality” as Ground for Vacating Arbitration Award under §10(a)(2) of Federal Arbitration Act

From Molten Metal Equip. Innovations, Inc. v. Pyrotek, Inc., 2010 U.S. Dist. LEXIS 64238 (N.D. Ohio June 29, 2010): "The Federal Arbitration Act ("FAA") expresses a presumption that arbitration awards will be confirmed." *** "When courts are called on to review an arbitrator's decision, the review is very narrow; [it is] one of the narrow ...
From Molten Metal Equip. Innovations, Inc. v. Pyrotek, Inc., 2010 U.S. Dist. LEXIS 64238 (N.D. Ohio June 29, 2010): “The Federal Arbitration Act (“FAA”) expresses a presumption that arbitration awards will be confirmed.” *** “When courts are called on to…
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Retainer Agreement Conclusively Establishes Scope of Representation and Duty in Legal Malpractice Action in New York

From Hallman v. Kantor, 72 A.D.3d 895 (2d Dept. 2010): The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defens ...
From Hallman v. Kantor, 72 A.D.3d 895 (2d Dept. 2010): The defendants submitted a retainer agreement reflecting that the plaintiff “understood, accepted and agreed” that the “scope of” their “engagement” was “to represent” her as a co-executor of her deceased…
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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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