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

Motion to Amend Complaint to Withdraw Claims within 21 Days of Rule 11 Motion Precludes Sanctions Based on that Motion Even If New, Frivolous Claims Added — Claims Need Not Be Withdrawn with Prejudice Under Rule 11 — § 1927 Inapplicable to Clients

From Sneller v. City of Bainbridge Island, 606 F.3d 636 (9th Cir. 2010): This case arises from a land use dispute between the Snellers and the City over the Snellers' efforts to develop property which included a wetland. The Snellers brought suit in federal court against the City, several of its employees, and other defendants no longer ...
From Sneller v. City of Bainbridge Island, 606 F.3d 636 (9th Cir. 2010): This case arises from a land use dispute between the Snellers and the City over the Snellers’ efforts to develop property which included a wetland. The Snellers…
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Minnesota Law Does Not Recognize a Cause of Action for Spoliation

From Ansari v. NCS Pearson, Inc., 2009 U.S. Dist. LEXIS 66034 (D. Minn. July 23, 2009): Minnesota does not provide for a substantive civil claim for negligent or intentional spoliation of evidence. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990).
From Ansari v. NCS Pearson, Inc., 2009 U.S. Dist. LEXIS 66034 (D. Minn. July 23, 2009): Minnesota does not provide for a substantive civil claim for negligent or intentional spoliation of evidence. See Federated Mut. Ins. Co. v. Litchfield Precision…
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Court May Hear Motion to Vacate Award Even If Action was Dismissed without Prejudice when Arbitration Compelled — Rule 60(b) Governs Motion for Reconsideration Filed after More Than 10 (Now 14) Days — 60(b)(6) Inapt if (b)(1), (2) or (3) Triggered

From Owen-Williams v. BB&T Inv. Servs., 2010 U.S. Dist. LEXIS 51046 (D.D.C. May 24, 2010): By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB&T Investment Services, Inc.'s ("Defendant" or "BB&T") request to compel arbitration of Plaintiff's breach of contract claims. The parties subsequently proceeded to ...
From Owen-Williams v. BB&T Inv. Servs., 2010 U.S. Dist. LEXIS 51046 (D.D.C. May 24, 2010): By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB&T Investment Services, Inc.’s (“Defendant” or “BB&T”) request to compel arbitration of…
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Lender’s Recovery under Credit Default Swap Does Not Constitute a Double Recovery Precluding It from Enforcing the Underlying Loan

From Zambrano v. HSBC Bank USA, Inc., 2010 U.S. Dist. LEXIS 51371 (E.D. Va. May 25, 2010): Plaintiff asserts a "double recovery" theory based on an incorrect understanding of credit default swaps, "credit enhancements," and loan securitization. According to Plaintiff's theory, Defendants may have received a credit "payoff" or swap upon ...
From Zambrano v. HSBC Bank USA, Inc., 2010 U.S. Dist. LEXIS 51371 (E.D. Va. May 25, 2010): Plaintiff asserts a “double recovery” theory based on an incorrect understanding of credit default swaps, “credit enhancements,” and loan securitization. According to Plaintiff’s…
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Experts — Rebuttal Report Timely If Submitted within Period Specified by Rule 26(a)(2)(C)(ii) and Pretrial Order Is Silent as to Rebuttal Reports — Caselaw Split

From Hernandez v. Butterball, LLC, 2010 U.S. Dist. LEXIS 50246 (E.D.N.C. May 21, 2010): The issue boils down to whether Rule 26(a)(2)(C)(ii), which allows disclosure of evidence contradicting or rebutting another party's expert testimony within thirty days after the other party's disclosure, applies here as a default rule where the sche ...
From Hernandez v. Butterball, LLC, 2010 U.S. Dist. LEXIS 50246 (E.D.N.C. May 21, 2010): The issue boils down to whether Rule 26(a)(2)(C)(ii), which allows disclosure of evidence contradicting or rebutting another party’s expert testimony within thirty days after the other…
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Spoliation — The Evidentiary Rationale for the Adverse Inference — Impact on Summary Judgment

From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. See Kronisch v. United States, < ...
From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party’s intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been…
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RICO: Iqbal + Twombly + 9(b) = Dismissal of § 1962(c)-(d) Claims; Deception Mandatory for Mail/Wire Fraud; Allegations of Parallel Conduct Generally Insufficient to Show Conspiracy; 11th Circuit Declines to Decide If Conspiracy Claim Falls

From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants' members through dental service managed care plans. Plaintiffs *** allege, on behalf of themselves and a putative class of similarly-situated dentists, that Defendants "e ...
From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants’ members through dental service managed care plans. Plaintiffs *** allege, on behalf of…
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Emails Authenticated by Production in Discovery — Evidence on Summary Judgment Usable If It Could be Reduced to Admissible Form at Trial

From United States v. Gray Ins. Co., 2010 U.S. Dist. LEXIS 27652 (N.D. Ga. Mar. 24, 2010): CCG's argument as to the authenticity of the exhibits is unavailing for several reasons. First, "there is no requirement that evidence be presented in admissible form as long as the evidence would be admissible at trial. The evidence at issue would ...
From United States v. Gray Ins. Co., 2010 U.S. Dist. LEXIS 27652 (N.D. Ga. Mar. 24, 2010): CCG’s argument as to the authenticity of the exhibits is unavailing for several reasons. First, “there is no requirement that evidence be presented…
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No Appellate Review of Denial of Remand on Basis that Bankruptcy Removal Statute Trumps Anti-Removal Provision of Securities Act — Extent of Reliance on Unpublished Opinions

From N.J. Dep’t of Treasury v. Fuld, 2010 U.S. App. LEXIS 9991 (3d Cir. May 17, 2010): The State of New Jersey, Department of Treasury, Division of Investment ("New Jersey") appeals the District Court's order denying its motion to remand the action it brought under the Securities Act of 1933, a statute that specifically precludes remo ...
From N.J. Dep’t of Treasury v. Fuld, 2010 U.S. App. LEXIS 9991 (3d Cir. May 17, 2010): The State of New Jersey, Department of Treasury, Division of Investment (“New Jersey”) appeals the District Court’s order denying its motion to remand…
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NFL Ticket Merely Affords Holder Right to View Game, Not Right to See Honest One — Patriots’ Spygate Scandal Causes No Cognizable Injury

From Mayer v. Belichick, 2010 U.S. App. LEXIS 10212 (3d Cir. May 19, 2010): 2. This case is brought by a New York Jets season ticket-holder on behalf of all similarly situated New York Jets season ticket-holders and other New York Jets ticket-holders against the Defendant New England Patriots and their coach, Defendant Bi ...
From Mayer v. Belichick, 2010 U.S. App. LEXIS 10212 (3d Cir. May 19, 2010): 2. This case is brought by a New York Jets season ticket-holder on behalf of all similarly situated New York Jets season ticket-holders and other New…
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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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