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

A Preservation Rule for the Federal Rules of Civil Procedure

Download associated file: Elements of a Preservation Rule.pdf  The Advisory Committee on the Federal Rules of Civil Procedure and the Standing Committee on Rules of Practice and Procedure sponsored the Duke Conference on Civil Litigation on Monday and Tuesday of this wee ...
Download associated file: Elements of a Preservation Rule.pdf  The Advisory Committee on the Federal Rules of Civil Procedure and the Standing Committee on Rules of Practice and Procedure sponsored the Duke Conference on Civil Litigation on Monday and Tuesday…
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Only Individual Lawyers, Not Law Firms, Subject to Sanction under 28 U.S.C. § 1927

From BDT Prods., Inc. v. Lexmark Int’l, Inc., 2010 U.S. App. LEXIS 8203 (6th Cir. April 21, 2010): Meisenheimer's first argument is that the district court erred to the extent that it imposed sanctions under 28 U.S.C. § 1927, as § 1927 permits the imposition of sanctions against individual lawyers, but not against law firms. ...
From BDT Prods., Inc. v. Lexmark Int’l, Inc., 2010 U.S. App. LEXIS 8203 (6th Cir. April 21, 2010): Meisenheimer’s first argument is that the district court erred to the extent that it imposed sanctions under 28 U.S.C. § 1927, as…
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Printout of Official Record from Government Website Self-Authenticating within Fed.R.Evid. 902(5)

From Weingartner Lumber & Supply Co. v. Kadant Composites, LLC, 2010 U.S. Dist. LEXIS 24918 (E.D. Ky. Mar. 10, 2010): In this internet, tech-savvy age, accessing official records from government websites is commonplace. Publicly maintained records downloaded from a government website would likely be self-authenticating under Fed. R. Evid. ...
From Weingartner Lumber & Supply Co. v. Kadant Composites, LLC, 2010 U.S. Dist. LEXIS 24918 (E.D. Ky. Mar. 10, 2010): In this internet, tech-savvy age, accessing official records from government websites is commonplace. Publicly maintained records downloaded from a government…
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28 U.S.C. § 1367 Confers Federal Jurisdiction over Compulsory, and Some Permissive, Counterclaims — First Circuit Follows Second and Seventh

From Global Naps, Inc. v. Verizon New England Inc., 2010 U.S. App. LEXIS 8929 (1st Cir. April 29, 2010): In an issue of first impression for this court, we hold that 28 U.S.C. § 1367, enacted in 1990, gives federal courts supplemental jurisdiction over both compulsory and at least some permissive counterclaims. This alters this circuit ...
From Global Naps, Inc. v. Verizon New England Inc., 2010 U.S. App. LEXIS 8929 (1st Cir. April 29, 2010): In an issue of first impression for this court, we hold that 28 U.S.C. § 1367, enacted in 1990, gives federal…
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Mexican Sociedad en Comandita Treated Like Corporation for Diversity Jurisdiction Purposes — Factors in Entering Default Judgment — Damages in Excess of Prayer for Relief — Rules for Measuring Damages and Establishing Facts on Default

From Baja Developments LLC v. TSD Loreto Partners, S. en C., 2010 U.S. Dist. LEXIS 42551 (D. Ariz. April 30, 2010): Following entry of default, Rule 55(b)(2), FED.R.CIV.P., permits a district court to enter final judgment in a case. Entry of default judgment, however, is not a matter of right. *** Entry of default judgment is entirely w ...
From Baja Developments LLC v. TSD Loreto Partners, S. en C., 2010 U.S. Dist. LEXIS 42551 (D. Ariz. April 30, 2010): Following entry of default, Rule 55(b)(2), FED.R.CIV.P., permits a district court to enter final judgment in a case. Entry…
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Is a New York State Court Summons with Notice (without Complaint) an “Initial Pleading” Removable to Federal Court? May the Federal Court Consider Later-Filed Proposed Complaint?

From MBIA Ins. Corp. v. Royal Bank of Canada, 2009 U.S. Dist. LEXIS 126910 (S.D.N.Y. Dec. 30, 2009): Plaintiffs argue that removal was improper under Section 1446(b) because the Summons with Notice was not an initial pleading. *** Specifically, Plaintiffs believe that removability was not ascertainable from the face of the Summons with No ...
From MBIA Ins. Corp. v. Royal Bank of Canada, 2009 U.S. Dist. LEXIS 126910 (S.D.N.Y. Dec. 30, 2009): Plaintiffs argue that removal was improper under Section 1446(b) because the Summons with Notice was not an initial pleading. *** Specifically, Plaintiffs…
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Metadata Associated with Public Records Are Themselves Public Records within Arizona Statute

From Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009): Arizona law provides that "[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." Ariz. Rev. Stat. ("A.R.S.") § 39-121 (2001). The City of Phoenix denied a public records request for ...
From Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009): Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during…
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Whether Expert Testimony is Correct vs. Whether It is Reliable — Good Quote

From Main Street Am. Group v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22667 (D. Md. Mar. 11, 2010): This court has "broad discretion in admitting scientific testimony that could later be tested by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." *** The proponents of ...
From Main Street Am. Group v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22667 (D. Md. Mar. 11, 2010): This court has “broad discretion in admitting scientific testimony that could later be tested by vigorous cross-examination, presentation of contrary…
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Legal Malpractice Claim Based on Bad Advice to Enter Stip Not Foreclosed by Earlier Court’s Refusal to Set Aside Stip

From Scartozzi v. Potruch, 2010 NY Slip Op 3102,; 2010 N.Y. App. Div. LEXIS 3068 (2d Dept. April 13, 2010): Contrary to the defendants' contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as legal malpractice the defendant's advice that she waive her right to seek prior counse ...
From Scartozzi v. Potruch, 2010 NY Slip Op 3102,; 2010 N.Y. App. Div. LEXIS 3068 (2d Dept. April 13, 2010): Contrary to the defendants’ contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as…
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Applicability of 28 U.S.C. § 1927 to Pro Se Litigants — Caselaw Split

From McCormick v. Brzezinski, 2010 U.S. Dist. LEXIS 36106 (E.D. Mich. April 13, 2010): Defendant relies on Wages v. Internal Revenue Service, 915 F.2d 1230, 1235-36 (9th Cir. 1989) to support his argument that sanctions under section 1927 apply to pro se litigants. But, by its terms, section 1927 applies to only "attorney[s ...
From McCormick v. Brzezinski, 2010 U.S. Dist. LEXIS 36106 (E.D. Mich. April 13, 2010): Defendant relies on Wages v. Internal Revenue Service, 915 F.2d 1230, 1235-36 (9th Cir. 1989) to support his argument that sanctions under section 1927 apply to…
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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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