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

Standards for Severing Claims into Separate Trials under Federal Rule of Civil Procedure 21

From Securities and Exchange Commission v. Leslie, 2010 U.S. Dist. LEXIS 76826 (N.D. Cal. July 29, 2010): The "determination of a Rule 21(b) motion involves the sound discretion of the trial court . . . ." United States v. Testa, 548 F.2d 847, 856 (9th Cir. 1977). See also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 101 ...
From Securities and Exchange Commission v. Leslie, 2010 U.S. Dist. LEXIS 76826 (N.D. Cal. July 29, 2010): The “determination of a Rule 21(b) motion involves the sound discretion of the trial court . . . .” United States v. Testa,…
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New Article on 2010 Expert Witness Rule Amendments

Download associated file: 2010 Rules Amendment Article.pdf  Linked above is an article analyzing the 2010 Amendments to Federal Rule of Civil Procedure 26 affecting expert discovery and disclosure. These provisions were tweaked after the Advisory Committee received comm ...
Download associated file: 2010 Rules Amendment Article.pdf  Linked above is an article analyzing the 2010 Amendments to Federal Rule of Civil Procedure 26 affecting expert discovery and disclosure. These provisions were tweaked after the Advisory Committee received comments on…
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Speaking Objections at Deposition Sanctioned under Rule 30(d) — Excessive Number of Unnecessary Objections as Sanctionable Even If None Is Argumentative or Suggestive

From Craig v. St. Anthony’s Med. Ctr., 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010): Once the deposition started, Harter continually made argumentative and suggestive objections. He also engaged in private and off-the-record conversations with his client, answered multiple questions in place of his client, and instructed his cli ...
From Craig v. St. Anthony’s Med. Ctr., 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010): Once the deposition started, Harter continually made argumentative and suggestive objections. He also engaged in private and off-the-record conversations with his client, answered…
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Filing of Amended Complaint Does Not Permit Defendant to Amend Counterclaims as of Right to Add Claims Unrelated to the Amendment — 2009 Amendments to Rule 15 and Deletion of Rule 13(f) Explained — 3 Extra Days for Electronic Service

From UPEK, Inc. v. AuthenTec, Inc., 2010 U.S. Dist. LEXIS 76807 (N.D. Cal. July 6, 2010): UPEK contends that AuthenTec's entitlement to amend its counterclaims as of right ended twenty-four days after UPEK filed its answer to the counterclaims. UPEK filed an amended complaint on the same day it answered AuthenTec's original counterclai ...
From UPEK, Inc. v. AuthenTec, Inc., 2010 U.S. Dist. LEXIS 76807 (N.D. Cal. July 6, 2010): UPEK contends that AuthenTec’s entitlement to amend its counterclaims as of right ended twenty-four days after UPEK filed its answer to the counterclaims. UPEK…
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Admissibility of Blog Posts — Caselaw Split

From QVC, Inc. v. Your Vitamins, Inc., 2010 U.S. Dist. LEXIS 76073 (D. Del. July 27, 2010): [Footnote 19] The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion) — an issue of first impression for th ...
From QVC, Inc. v. Your Vitamins, Inc., 2010 U.S. Dist. LEXIS 76073 (D. Del. July 27, 2010): [Footnote 19] The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this…
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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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Recent Posts

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit):  Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Standing: Antitrust’s Indirect Purchaser Rule Applies in RICO Cases, Barring Claims by Indirect Purchasers Two Or More Steps Removed From The Violator In A Distribution Chain (Here, Truck Purchasers/Lessees Suing Manufacturer), Though Court Considers Bar “Unsupported by Sensible Principles”

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

Inherent Power and FRAP 38 Sanctions — Inherent Power Sanctions (Here, A Deterrence Payment of $25,000 to the Court — Goodyear Issue Not Addressed) May Be Imposed in Addition to Statutory Attorney’s Fees under 35 U.S.C. § 285 (Exceptional Patent Case) — § 285 Does Not Preclude A Separate Award of Sanctions Or Fees under Another Authority — Recidivism (25 Prior Lawsuits with Same Perceived Venue Deficiency) A Factor — Fact That Rule 11 Sanctions Were Unavailable Due to Dismissal of Lawsuit Opened the Door to Inherent Power Sanctions Under Chambers — FRAP 38 Sanctions Denied Because Issue Previously Unaddressed in Circuit — A Meritless Appeal Is By No Means Necessarily A Frivolous One (Good Quote)

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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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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