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

Do Lawyers Uninvolved in Trial Enjoy a First Amendment Right to Juror Access for CLE Program? — District Court’s Failure to Exercise Meaningful Discretion = Abuse of Discretion

From Clyma v. Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010): A civil jury rendered a verdict for Plaintiff Clyma and against Defendant Sunoco in the employment discrimination dispute underlying this matter. With cross-appeals pending in this Court, Movant Oklahoma Employment Lawyers Association (OELA) submitted to the district court an "Ap ...
From Clyma v. Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010): A civil jury rendered a verdict for Plaintiff Clyma and against Defendant Sunoco in the employment discrimination dispute underlying this matter. With cross-appeals pending in this Court, Movant Oklahoma…
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Judicial Review of Arbitration Awards — Absent Affirmative Consent, Classwide Arbitration Barred — Ripeness

From Stolt-Nielsen S. A. v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010): [Grant of Certiorari Implicitly Rejects Unarticulated Challenge to Ripeness.] [Footnote 2] Invoking an argument not pressed in or considered by the courts below, the dissent concludes that the question presented is not ripe for our revi ...
From Stolt-Nielsen S. A. v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010): [Grant of Certiorari Implicitly Rejects Unarticulated Challenge to Ripeness.] [Footnote 2] Invoking an argument not pressed in or considered by the courts below, the dissent concludes that…
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No Rule 11 Sanctions for “Incorrect Belief” about the Law, Instead of “Callous Disregard” of It

From Akins-Brakefield v. Philip Envt’l Servs., 2010 U.S. Dist. LEXIS 25062 (S.D. Ill. Mar. 17, 2010): [Defendant] PESC contends that Plaintiff's claims for Assault (Count V), Battery (Count VI), Negligent Supervision (Count VII) and Willful FMLA violations (Count VIII) were, on the face of her Second Amended Complaint, wholly devoid of ...
From Akins-Brakefield v. Philip Envt’l Servs., 2010 U.S. Dist. LEXIS 25062 (S.D. Ill. Mar. 17, 2010): [Defendant] PESC contends that Plaintiff’s claims for Assault (Count V), Battery (Count VI), Negligent Supervision (Count VII) and Willful FMLA violations (Count VIII) were,…
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“Serious Questions” Standard for Preliminary Injunction Survives Supreme Court’s Winter Trilogy — Likelihood of Success Not Mandatory— Second Circuit Standards, with Exceptions

From Citigroup Global Markets, Inc. v. VCG Spec. Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010): VCG argues that three recent decisions of the Supreme Court—Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 171 L. Ed. 2d 1 (2008); Winter [v. Natural Resources Defense Council, Inc. , 129 S. Ct. 365, 172 L. ...
From Citigroup Global Markets, Inc. v. VCG Spec. Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010): VCG argues that three recent decisions of the Supreme Court—Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 171 L. Ed.…
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RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-on Merger

From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO's uranium mining claims to subsidiaries of defendant Uranium King, Ltd. (UKL), an Australian c ...
From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO’s uranium mining…
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Rule 41(b) Does Not Preclude Inherent Power Sanctions for Failure to Prosecute

From Scott v. Knight, 2010 U.S. Dist. LEXIS 25610 (S.D. Ala. Feb. 22, 2010): Due to Plaintiff's failure to comply with the Court's Order and to prosecute this action, it appears that Plaintiff has abandoned his action thereby subjecting it to dismissal pursuant to the Court's inherent powers. Link v. Wabash R.R., 370 U.S. 626, 63 ...
From Scott v. Knight, 2010 U.S. Dist. LEXIS 25610 (S.D. Ala. Feb. 22, 2010): Due to Plaintiff’s failure to comply with the Court’s Order and to prosecute this action, it appears that Plaintiff has abandoned his action thereby subjecting it…
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When Future Injury Confers Standing — Ninth Circuit

From Mory v. City of Chula Vista, 2010 U.S. App. LEXIS 5261 (9th Cir. Mar. 1, 2010): Mory contends that part of her injury stems from her fear that she will be disciplined for future pageant participation, or that her alleged insubordination in participating in the 2006 pageant will be used against her in future promotions, transfers, sal ...
From Mory v. City of Chula Vista, 2010 U.S. App. LEXIS 5261 (9th Cir. Mar. 1, 2010): Mory contends that part of her injury stems from her fear that she will be disciplined for future pageant participation, or that her…
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Standards for Setting Aside a Jury Verdict in New York State Court under CPLR 4404(a)

From Christ v Law Offices of Levine & Grossman, 2010 NY Slip Op 3056, 2010 N.Y. App. Div. LEXIS 3024 (2d Dept. April 13, 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 d ...
From Christ v Law Offices of Levine & Grossman, 2010 NY Slip Op 3056, 2010 N.Y. App. Div. LEXIS 3024 (2d Dept. April 13, 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant…
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Tolling of Limitations Periods for State Law Claims under 28 U.S.C. § 1367(d) — Caselaw Split — Application to Absent Class Members

From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): 2. Tolling under 28 U.S.C. § 1367(d) Unlike the judicial tolling doctrine espoused in American Pipe, 28 U.S.C. § 1367 provides for statutory tolling for certain claims. That provision is directed at a federal court's ...
From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): 2. Tolling under 28 U.S.C. § 1367(d) Unlike the judicial tolling doctrine espoused in American Pipe, 28 U.S.C. § 1367 provides…
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American Pipe and Successive Class Actions — A Plaintiff who has Benefitted from American Pipe Tolling May Commence a Second Class Action when Class Issues Not Definitively Ruled on in First Action

From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): Subsequent to American Pipe and Crown, Cork & Seal, the Sixth Circuit addressed whether an unnamed plaintiff who benefits from American Pipe tolling may assert claims on behalf of a class. See, Andrews v. Orr, < ...
From In re Vertrue Mktg. & Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 38582 (N.D. Ohio April 16, 2010): Subsequent to American Pipe and Crown, Cork & Seal, the Sixth Circuit addressed whether an unnamed plaintiff who benefits from American…
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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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