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

Spoliation — Adverse Inference Instruction — Circuit Breakdown as to Whether Bad Faith, Intentionality or Mere Negligence Is Needed

Two cases: 1. From United States v. Laurent, 2010 U.S. App. LEXIS 12449 (1st Cir. June 17, 2010): A "spoliation" instruction, allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which a reasonable jury might conclude that evidence favorable to one side was dest ...
Two cases: 1. From United States v. Laurent, 2010 U.S. App. LEXIS 12449 (1st Cir. June 17, 2010): A “spoliation” instruction, allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which…
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Email Sufficiently Authenticated by Appearance and Contents — 12(f) Inapplicable to Affidavits and Evidence — Enforcement of Local Rule Limiting Brief Page Length Is Discretionary with the Court

From Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June 7, 2010): [12(f).] Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). Contrary to Plaintiff' ...
From Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June 7, 2010): [12(f).] Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.…
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May a Party Obtain a Protective Order Relieving It of the Duty to Access Back-Up Tapes When that Party’s Negligent Failure to Issue a Litigation Hold Caused the Data to be Backed Up? Yes.

From Major Tours, Inc. v. Colorel, 2010 U.S. Dist. LEXIS 62948 (D.N.J. June 22, 2010): The first question is whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the evidence is inaccessible because of that party's failure to institute a litigation hold. The Court examines this questi ...
From Major Tours, Inc. v. Colorel, 2010 U.S. Dist. LEXIS 62948 (D.N.J. June 22, 2010): The first question is whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the…
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Supreme Court Decision in Merck Does Not Apply to RICO — No Equitable Estoppel for Bad Acts after Plaintiff Should’ve Known of Its Injury — Equitable Estoppel v. Tolling — Restricting Boyle: Using vs. Being a Conspiracy/Enterprise

From Jay E. Hayden Found. v. First Neighbor Bank, N.A., 2010 U.S. App. LEXIS 12773 (7th Cir. June 22, 2010): A foundation created by Jay Hayden, and the estates of his mother and of another woman (R. Maurine Johnson), brought this RICO suit against a bank, two law firms, and seven persons connected with either the bank or the law firms. ...
From Jay E. Hayden Found. v. First Neighbor Bank, N.A., 2010 U.S. App. LEXIS 12773 (7th Cir. June 22, 2010): A foundation created by Jay Hayden, and the estates of his mother and of another woman (R. Maurine Johnson), brought…
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New York Relaxes Strict Privity Requirement in Legal Malpractice Action Brought by Personal Representative Against Counsel to Testator

From Estate of Schneider v. Finmann, 2010 NY Slip Op 5281, 2010 N.Y. LEXIS 1169 (N.Y. Ct. App. June 17, 2010): In April 2000, decedent purchased a $ 1 million life insurance policy. Over several years, he transferred ownership of that property from himself to an entity of which he was principal owner, then to another entity of which he w ...
From Estate of Schneider v. Finmann, 2010 NY Slip Op 5281, 2010 N.Y. LEXIS 1169 (N.Y. Ct. App. June 17, 2010): In April 2000, decedent purchased a $ 1 million life insurance policy. Over several years, he transferred ownership of…
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Sanctions Under the PSLRA — Eleventh Circuit

From Ledford v. Peeples, 605 F.3d 871 (11th Cir. 2010) (Note: This opinion is on reconsideration and modifies the opinion reported in our post of July 8, 2009): We pause here to elucidate the meaning of abuse of discretion review in the PSLRA context. We find it helpful to explain how abuse of discretion review differs from de novo
From Ledford v. Peeples, 605 F.3d 871 (11th Cir. 2010) (Note: This opinion is on reconsideration and modifies the opinion reported in our post of July 8, 2009): We pause here to elucidate the meaning of abuse of discretion review…
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Motion to Seal Summary Judgment Papers to Preserve Confidentiality of Settlement Denied — Standards for Sealing

From TIG Ins. Co. v. Firemen’s Fund Ins. Co., 2010 U.S. Dist. LEXIS 61519 (D.D.C. June 22, 2010): The [underlying] insurance coverage and liability actions [brought by third parties] against the plaintiff and the defendant were resolved in accordance with a confidential Settlement Agreement and Release (the "Settlement Agreement").... I ...
From TIG Ins. Co. v. Firemen’s Fund Ins. Co., 2010 U.S. Dist. LEXIS 61519 (D.D.C. June 22, 2010): The [underlying] insurance coverage and liability actions [brought by third parties] against the plaintiff and the defendant were resolved in accordance with…
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Expert Opinion Formed Prematurely (Prior to Significant Discovery) Excluded

From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Defendants' first contention is that Jones's opinions fail to adhere to the scientific method because they did not follow the generally accepted scientific norms set forth in NFPA (National Fire Protection Association) 921, Guide for F ...
From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Defendants’ first contention is that Jones’s opinions fail to adhere to the scientific method because they did not follow the…
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Enforceability of Entire Agreement Containing Arbitration Clause Is for Arbitrator to Decide — Court May Consider Only Enforceability of Agreement to Arbitrate Specific Issue — U.S. Supreme Court

An attack on the enforceability of a contract containing an arbitration clause is for the arbitrator to resolve, under the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010). Only an attack on the enforceability of the arbitration clause itself is subject to judicial determination. The Court conside ...
An attack on the enforceability of a contract containing an arbitration clause is for the arbitrator to resolve, under the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (U.S. June 21, 2010). Only an attack…
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First-Filed Rule — Exceptions — Forum-Shopping Not Necessarily Abusive

From Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Aker Kvaerner/IHI, 2010 U.S. Dist. LEXIS 60019 (S.D. Tex. June 16, 2010): A. The First-to-File Rule The first-to-file rule is based on "principles of comity and sound judicial administration." Save Power Ltd. v. Syntek Fin. Corp. , 121 F.3d 947, 950 (5th Cir. ...
From Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Aker Kvaerner/IHI, 2010 U.S. Dist. LEXIS 60019 (S.D. Tex. June 16, 2010): A. The First-to-File Rule The first-to-file rule is based on “principles of comity and sound judicial administration.” Save…
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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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