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

Who Becomes the Real-Party-in-Interest when a Party Becomes Incompetent? — Roles of State/Federal Law — Rules 17 and 25

From Kuelbs v. Hill, 2010 U.S. App. LEXIS 15757 (8th Cir. July 30, 2010): We first address who became the real party in interest after Kuelbs was declared incompetent. "In a diversity action, state law determines the issue of who is a real party in interest." Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th Cir. 1993). W ...
From Kuelbs v. Hill, 2010 U.S. App. LEXIS 15757 (8th Cir. July 30, 2010): We first address who became the real party in interest after Kuelbs was declared incompetent. “In a diversity action, state law determines the issue of who…
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Fed.R.Civ.P. 83 Precludes Striking Brief on Ground It Lacks Tables of Contents and Authorities Required by Local Rule (Nonwillful Violation)

From Hanks v. Shinseki, 2010 U.S. Dist. LEXIS 76660 (N.D. Tex. July 28, 2010): Hanks has moved to strike the defendants' motion, the brief in support thereof, and the appendix in support thereof. As to the defendants' motion and brief, Hanks contends that both should be stricken because the brief is longer than ten pages but does not in ...
From Hanks v. Shinseki, 2010 U.S. Dist. LEXIS 76660 (N.D. Tex. July 28, 2010): Hanks has moved to strike the defendants’ motion, the brief in support thereof, and the appendix in support thereof. As to the defendants’ motion and brief,…
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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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Recent Posts

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

RICO: No Causation for Company Harmed by Governmental Customers Shunning It After Employee Publishes Book Admitting He Bribed Governmental Officials — Harm Too Indirect, Not from Bribery (Predicate Act) But from Customers’ Decisions to Shun and Publication of Book (Both Lawful) — Customers Injured by Bribery of Their Officials Are More Direct Plaintiffs

FRAP 38 Sanctions for Frivolous Opposition to Arbitration

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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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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