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

Rule 37, Default/Dismissal & Contempt Sanctions in the Second Circuit — Inherent Power Defers to Applicable Rule — No Harm, No Foul Rejected

From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that "[s]everal factors may be useful in evaluating a district court's exercise of discretion" to impose sanctions pursuant to this rule [Fed. R. Ci ...
From So. New Eng. Tel. Co. v . Global Naps Inc., 2010 U.S. App. LEXIS 17747 (2d Cir. Aug. 25, 2010) (“Window Washer”evidence-deletion program used, among other things): We have indicated that “[s]everal factors may be useful in evaluating a…
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Tenth Circuit Requires Subjective Bad Faith for Inherent Power Sanctions but Applies Objective Test to Determine Vexatiousness under § 1927

From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court's order summarizes some errant conduct on the part of defendants. However, it lacks a finding of "subjective wrongdoing . . . required to support a fee award" under the federal courts' inherent power. *** The cases relied upon by the dis ...
From Kornfeld v.Kornfeld, 2010 U.S. App. LEXIS 18329 (10th Cir. Aug. 31, 2010): The district court’s order summarizes some errant conduct on the part of defendants. However, it lacks a finding of “subjective wrongdoing . . . required to support…
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Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant... ...
From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden…
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Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court's factual findings, such findings are reviewed for clear error. Fed. R. Civ. P. 52(a)(6). A district court's finding of fact is clearly erroneous ...
From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court’s factual findings, such findings are reviewed for clear…
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The Law of the Case Doctrine

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): "'As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Indus. Operati ...
From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): “‘As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should…
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Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the destruction of emails and TISH reports. They request an inference that "the evidence destroyed was unfav ...
From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the…
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Rule 802(d)(2) Admissions in Employment Actions — Employee-Speaker Must Have Been Involved in the Decision-Making Process

From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): "[A]n employee's statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was 'involved in the decisionmaking process affecting the employment action' at issue." Johns ...
From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): “[A]n employee’s statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was ‘involved…
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Fraudulent Joinder Standard Is More Deferential to Plaintiff than 12(b)(6) Standard — “Any Reasonable Possibility” vs. “Any Possibility”

From Sanders v. DJO, LLC, 2010 U.S. Dist. LEXIS 89652 (D.N.M. July 7, 2010): Defendants claiming that fraudulent joinder has occurred bear the burden of establishing that fact. This burden is a heavy one. See, e.g., Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 764 (7th Cir. 2009); Montano v. Allstate Indemnity, 2 ...
From Sanders v. DJO, LLC, 2010 U.S. Dist. LEXIS 89652 (D.N.M. July 7, 2010): Defendants claiming that fraudulent joinder has occurred bear the burden of establishing that fact. This burden is a heavy one. See, e.g., Schur v. L.A. Weight…
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Arbitration Agreement’s Selection of State Arbitration Act Does Not Entirely Displace FAA or Effect Waiver of Right to Remove — Intent to Apply State Vacatur Standards Must be Clear

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the "domestic FAA"), 9 U.S.C. §§ 1-16, is a set of default rules "designed 'to overrule the judiciary's longstanding refu ...
From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the “domestic FAA”),…
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Delay of 4 Months before Serving Rule 11 Motion and 13 Months before Filing Is Not Undue, If Safe Harbor Honored — Calculating Non-Specific Attorneys’ Fees by Percentage of Frivolous Counts

From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits that this lassitude should have led to a dismissal of the request. Sigman and Thomas counter that Golde ...
From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits…
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Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

RICO: Employer Suffered Harm to Business or Property When Kickbacks Paid to Employees in Real Estate Transactions Done for Employer — Expert Testimony Sufficient to Prove Harm — Proof That Employer Paid Above-Market Prices Not Essential — Non-Disclosure of Certain Damages in Initial Disclosures Cured by Expert Report, Which Also Rendered Initial Non-Disclosure Harmless

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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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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