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

Supplementation of Expert Report to Add Study from Unretained Expert Barred

From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Plaintiff moves first to exclude any reference to a study conducted by Scott Barnhill in which Mr. Barnhill recorded the results of his testing of the characteristics of heaters similar to the one at issue here as well as the potential ...
From State Farm Fire & Cas. Co. v. Jarden Corp., 2010 U.S. Dist. LEXIS 60327 (S.D. Ind. June 16, 2010): Plaintiff moves first to exclude any reference to a study conducted by Scott Barnhill in which Mr. Barnhill recorded the…
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Consumer Complaint Emails Admissible under Residual Exception to the Hearsay Rule — Meaning of a “Competent” Witness

From State of Conn. v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2010 Conn. LEXIS 196 (Conn. Sup. Ct. 2010): The plaintiff, the state of Connecticut, appeals from the decision of the trial court granting the motions of the defendants, Valerie Hawk-Hoffman and David Hoffman, to dissolve prejudgment attachments originally filed agains ...
From State of Conn. v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 2010 Conn. LEXIS 196 (Conn. Sup. Ct. 2010): The plaintiff, the state of Connecticut, appeals from the decision of the trial court granting the motions of the defendants,…
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Attacking Arbitration Award on Grounds Known but Silently Acquiesced in until Award Rendered — “Evident Partiality” — Failure to Postpone Hearing

From Rai v. Barclays Capital Inc., 2010 U.S. Dist. LEXIS 59739 (S.D.N.Y. June 14, 2010): 1. Evident Partiality of the Arbitrators Section 10(a)(2) of the FAA allows a court to vacate an arbitration award "where there was evident partiality or corruption in the arbitrators, or either of them." In Morelite Construction ...
From Rai v. Barclays Capital Inc., 2010 U.S. Dist. LEXIS 59739 (S.D.N.Y. June 14, 2010): 1. Evident Partiality of the Arbitrators Section 10(a)(2) of the FAA allows a court to vacate an arbitration award “where there was evident partiality or…
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RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff know ...
From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009): Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156…
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Dismissal as a Sanction — Factors — Sixth Circuit

From Fharmacy Records v. Nassar, 2010 U.S. App. LEXIS 11626 (6th Cir. June 7, 2010): We have identified four factors — the "Regional Refuse factors" — that guide our review of a district court's decision to dismiss a party's lawsuit as a sanction: (1) whether the party's [conduct] [was] due to willfulness ...
From Fharmacy Records v. Nassar, 2010 U.S. App. LEXIS 11626 (6th Cir. June 7, 2010): We have identified four factors — the “Regional Refuse factors” — that guide our review of a district court’s decision to dismiss a party’s lawsuit…
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Sanctions: Bad Faith Irrelevant to Rule 11 Liability but Relevant to Type and Quantum of Sanction

From Ameriquest Mortgage Co. v. Nosek, 2010 U.S. App. LEXIS 12068 (1st Cir. June 14, 2010): On January 25, 2008, the bankruptcy court ordered Ameriquest to show cause why sanctions should not be imposed under Federal Rule of Bankruptcy Procedure 9011 [substantively identical to Fed.R.Civ.P. 11] for misrepresenting during the Nosek bankrup ...
From Ameriquest Mortgage Co. v. Nosek, 2010 U.S. App. LEXIS 12068 (1st Cir. June 14, 2010): On January 25, 2008, the bankruptcy court ordered Ameriquest to show cause why sanctions should not be imposed under Federal Rule of Bankruptcy Procedure…
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Inherent Power Sanctions Properly Imposed on Non-Parties Responsible for the Violation but Sanctions May Not Include the Fees Incurred in the (Month-Long) Sanctions Proceeding

Orange Blossom LP v. So. Calif. Sunbelt Developers, Inc., 608 F.3d 456 (9th Cir. 2010): Thirteen entities filed involuntary bankruptcy petitions against IBT International, Inc. (IBT) and Southern California Sunbelt Developers, Inc. (SCSD) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 303. The [13] petitioning creditors are *** co ...
Orange Blossom LP v. So. Calif. Sunbelt Developers, Inc., 608 F.3d 456 (9th Cir. 2010): Thirteen entities filed involuntary bankruptcy petitions against IBT International, Inc. (IBT) and Southern California Sunbelt Developers, Inc. (SCSD) under Chapter 11 of the Bankruptcy Code,…
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Spoliation — Refusal to Prepare Witness for Trial as Akin to Spoliation — Adaptation of Pattern Spoliation Instruction Upheld

From Hayes v. Claimants Landscape Mgmt., Inc., 2009 Cal. App. Unpub. LEXIS 2566 (Cal. App. Mar. 30, 2009): As trial was about to begin, respondent's counsel advised appellant that Vega [a key witness] was no longer employed by respondent and that respondent would not be producing him for trial. Appellant moved to strike respondent's answ ...
From Hayes v. Claimants Landscape Mgmt., Inc., 2009 Cal. App. Unpub. LEXIS 2566 (Cal. App. Mar. 30, 2009): As trial was about to begin, respondent’s counsel advised appellant that Vega [a key witness] was no longer employed by respondent and…
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Civil RICO Claim Arising out of Ponzi Scheme Precluded by PSLRA Bar — Criminal Conviction Exception Limited to the Person Convicted

From Smith v. Copeland, 2010 U.S. Dist. LEXIS 51157 (N.D. Ga. May 21, 2010): Plaintiffs allege that they are victims of a $ 40 million Ponzi scheme orchestrated primarily by Defendant Robert Copeland who pled guilty to criminal charges. Plaintiffs contend that Copeland and his "Salesperson Defendants" defrauded investors by selling sham ...
From Smith v. Copeland, 2010 U.S. Dist. LEXIS 51157 (N.D. Ga. May 21, 2010): Plaintiffs allege that they are victims of a $ 40 million Ponzi scheme orchestrated primarily by Defendant Robert Copeland who pled guilty to criminal charges. Plaintiffs…
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Order for New Trial Based on Misconduct of Counsel Does Not Constitute Appealable Sanctions Order — Circuit Split as to Whether and When Order Containing Criticism Comprises a Sanction

From In re Metropolitan Gov’t of Nashville and Davidson County, TN, 2010 U.S. App. LEXIS 11368 (6th Cir. 2010), a contentious employment discrimination action: 2. Attorney sanctions as a basis to appeal Metro's alternative contention is that we have jurisdiction over this case because the district court's order amount ...
From In re Metropolitan Gov’t of Nashville and Davidson County, TN, 2010 U.S. App. LEXIS 11368 (6th Cir. 2010), a contentious employment discrimination action: 2. Attorney sanctions as a basis to appeal Metro’s alternative contention is that we have jurisdiction…
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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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