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

Standards for Circuit-Level Review of Magistrate Judge’s Report & Recommendation Not Objected to in District Court — Interests of Justice, Substantial Merit, Plain Error

From Kaboggozamusoke v. Rye Town Hilton Hotel, 2010 U.S. App. LEXIS 8094 (2d Cir. April 6, 2010): The magistrate's report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and that the failure to file timely objections would constitute a waiver of those ...
From Kaboggozamusoke v. Rye Town Hilton Hotel, 2010 U.S. App. LEXIS 8094 (2d Cir. April 6, 2010): The magistrate’s report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and…
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Mandamus Jurisdiction to Review Denial of Privilege Assertion Post-Mohawk

On December 11, 2009, three days after the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009), the Ninth Circuit granted mandamus review of an order denying assertion of a First Amendment privilege against discovery, in Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2009). On remand, applying the standards articulat ...
On December 11, 2009, three days after the Supreme Court’s decision in Mohawk Indus. v. Carpenter, 558 U.S. ___ (Dec. 8, 2009), the Ninth Circuit granted mandamus review of an order denying assertion of a First Amendment privilege against discovery,…
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Factors Determining whether the SEC Is Entitled to Injunctive Relief against Future Violations in a Civil Enforcement Action

From SEC v. Curshen, 2010 U.S. App. LEXIS 7555 (10th Cir. April 13, 2010): An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined, will violate securities laws in the future. *** Determination of the likelihood of future vio ...
From SEC v. Curshen, 2010 U.S. App. LEXIS 7555 (10th Cir. April 13, 2010): An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined,…
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Right to Judicial Proceeding May Constitute “Property” for RICO Injury Purposes

From Avalos v. Baca, 596 F.3d 583 (9th Cir. 2010): [I]n order to state a RICO claim, a plaintiff must show harm to a specific business or property interest. Diaz, 420 F.3d at 900 (holding that "[w]ithout a harm to a specific business or property interest . . . there is no injury to business or property within the meaning of RICO") ...
From Avalos v. Baca, 596 F.3d 583 (9th Cir. 2010): [I]n order to state a RICO claim, a plaintiff must show harm to a specific business or property interest. Diaz, 420 F.3d at 900 (holding that “[w]ithout a harm to…
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Monetary Sanctions for Failure to Prepare 30(b)(6) Witness Properly

From Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653 (D. Kan. 2010): One of the seminal cases regarding discovery sanctions in this district is Starlight International, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D. 587 (D. Kan. 1999).*** ...Starlight stands for the proposition that producin ...
From Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653 (D. Kan. 2010): One of the seminal cases regarding discovery sanctions in this district is Starlight International, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999), and 190 F.R.D.…
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Duty to Allow Insurer to Inspect Equipment Giving Rise to Claim ≠ Contractual Duty to Preserve Equipment as a Condition of Making Claim — Repair Shop’s Disposal of Broken Part Before Anyone’s Awareness of Claim ≠ Spoliation

From Green Meadow Bean Co. v. Nationwide Agribusiness Ins. Co., 2010 U.S. Dist. LEXIS 34838 (D. Minn. April 8, 2010): *** Nationwide argues Green Meadow failed to comply with the policy conditions by failing to keep the broken contactor. The policy provides, in relevant part, that "[a]s often as we [Nationwide] reasonably require," the i ...
From Green Meadow Bean Co. v. Nationwide Agribusiness Ins. Co., 2010 U.S. Dist. LEXIS 34838 (D. Minn. April 8, 2010): *** Nationwide argues Green Meadow failed to comply with the policy conditions by failing to keep the broken contactor. The…
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Attorney-Client Privilege and Email

From Rorar v State & Fed. Commc’ns, Inc., 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010): Attorney-Client Privilege As Applied to the E-mail Communications E-mails add complexity to the already difficult analysis of the application of the attorney-client privilege. See Thompson v. Chertoff, No. 3:06-CV- ...
From Rorar v State & Fed. Commc’ns, Inc., 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010): Attorney-Client Privilege As Applied to the E-mail Communications E-mails add complexity to the already difficult analysis of the application of the attorney-client…
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Inadequate Authentication of Government Website Evidence

From Phipps v. Stellar Recovery, Inc., 2010 U.S. Dist. LEXIS 33029 (S.D. Ohio April 5, 2010): Plaintiff [argues]: Since Defendant admits to threatening Plaintiff with a lawsuit, and garnishment but has not filed any legal action against Plaintiff, it is evident that Defendant never intended to take such action and mad ...
From Phipps v. Stellar Recovery, Inc., 2010 U.S. Dist. LEXIS 33029 (S.D. Ohio April 5, 2010): Plaintiff [argues]: Since Defendant admits to threatening Plaintiff with a lawsuit, and garnishment but has not filed any legal action against Plaintiff, it is…
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United Nations and U.N. Officials Absolutely Immune from Suit — What Is a Self-Executing Treaty?

From Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010): [T]he United States has ratified the CPIUN [the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946]*** The parties do not dispute that the CPIUN is binding on the United States as a matter of international law. However, they disagree about ...
From Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010): [T]he United States has ratified the CPIUN [the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946]*** The parties do not dispute that the CPIUN is…
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Standard and Method of Review of Class Certification Decisions

From Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010): [W]hen a district court's class action certification is on appeal, we say that the overall standard of review is for abuse of discretion. *** In addition, when any particular underlying Rule 23 determination involving a discretionary determination is appealed, ...
From Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010): [W]hen a district court’s class action certification is on appeal, we say that the overall standard of review is for abuse of discretion. *** In addition,…
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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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